BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Carole Migden, Chairwoman S 2005-2006 Regular Session B 1 1 2 SB 1128 (Alquist) 8 As Amended March 7, 2006 Hearing date: March 15, 2006 Government and Penal Codes (URGENCY) JM/AA:br SEX OFFENDERS HISTORY Source: Author Prior Legislation: None equivalent to this bill; others on the same general subject are too numerous to list Support: Santa Clara County District Attorney's Office; Peace Officers Research Association (PORAC); Office of the Attorney General; California Police Chiefs Association; Community Solutions; California District Attorneys Association Opposition:one individual KEY ISSUE SHOULD THE "SEX OFFENDER PUNISHMENT, CONTROL AND CONTAINMENT ACT OF 2006" BE ENACTED, AS SPECIFIED? PURPOSE The purpose of this bill is to enact the "Sex Offender Punishment, Control and Containment Act of 2006," which (More) SB 1128 (Alquist) PageB includes the following provisions: 1) creates a new crime for child luring that includes within its scope police sting operations, as specified; 2) creates a new 25 to life crime for specified sex crimes against young children, as specified; 3) creates a new loitering statute prohibiting sex offenders from loitering around school grounds and other places where vulnerable persons congregate, as specified; 4) increases and recasts penalties for child pornography, as specified; 5) states legislative intent to establish child safety programs; 6) requires each county to establish a SAFE team, as specified; 7) requires recidivism risk assessments for all registered sex offenders, as specified; 8) enhances parole and probation provisions for sex offenders, as specified; 9) extends parole periods for all violent sex offenses; 10) imposes indeterminate terms for sexually violent predators, with minimum constitutional requirements; 11) proposes largely technical sentencing reforms concerning specified sex offenses; 12) requires the Department of Justice to update the Megan's Law database and provide increased information on the Megan's Law Web site; 13) makes changes to sex offender registration provisions, as specified; and 14) enhances the information available on the Megan's Law Web site. CHILD LURING (Sec. 7) Existing Law Existing law provides that any person who by act or omission persuades, induces, or commands a person under the age of 18 years to disobey a lawful order of the juvenile court or causes a minor to remain a delinquent or dependent child is guilty of contributing to the delinquency of a minor. (Pen. Code 272, subd. (a)(1).) Existing law provides that an adult stranger 21 years of age or older who knowingly contacts or communicates with a minor 12 years of age or younger, who knew or should have known that the minor is 12 years of age or younger, for the purpose of (More) SB 1128 (Alquist) PageC persuading, transporting, or luring the minor away from his or her home or known location, without consent, is guilty of either an infraction or a misdemeanor. (Pen. Code 272, subd. (b)(1).) Existing law provides that the crime of luring a child from his home does not apply to contact made by a person 1) in an emergency, or 2) in the course and scope of employment, or 3) to contact made by a volunteer for a recognized civic or charitable organization. (Pen. Code 272, subd. (b)(2) and (4).) Existing law provides that an infraction is not punishable by imprisonment. (Pen. Code 19.6.) Existing law provides that a person charged with an infraction is not entitled to a trial by jury or a public defender or other counsel appointed to represent him or her at public expense. (Pen. Code 19.6.) Existing law provides that a person who attempts to commit a crime, but who fails to commit the crime or who is prevented from doing so, shall generally receive one-half the sentence normally imposed for the completed crimes. Certain exceptions apply; the punishment for attempted, premeditated murder is life in prison with the possibility of parole. (Pen. Code 664.) Existing law provides that a person is guilty of an attempt to commit a crime where he or she specifically intends to commit the crime and takes a direct, but ineffectual, step towards its commission. (Pen. Code 21a; 1 Witkin & Epstein, Cal. Crim. Law (3d Ed. 2000) 53.) Existing law provides that every person who "annoys or molests" a minor is guilty of a misdemeanor, punishable by up to one year in a county jail, a fine of up to $1,000, or both. (Pen. Code 647.6.) Decisional law has interpreted this crime to include an element that the perpetrator had an abnormal or unnatural sexual interest in children. (People v. McFarland (2000) 78 (More) SB 1128 (Alquist) PageD Cal.App.4th 489.) A person who has been previously convicted of this offense is guilty of a felony. A person who committed this crime after entering a residence without consent is guilty of an alternate felony-misdemeanor. A person who has been previously convicted of a specified sex crime that involved a victim under the age or 16, or a previous felony conviction under Section 647.6, or a specified prior lewd conduct ( 288) conviction, or a conviction for using a minor under the age of 14 in the production of illegal pornography, is guilty of a felony, punishable by a prison term of 2, 4 or 6 years. This Bill This bill creates a new crime and sentencing scheme concerning persons with an unnatural or abnormal sexual interest in minors who contact minors with the intent to engage in sexual activity. This new crime describes a range of prohibited conduct and sets corresponding penalties. This new crime is drawn from a long-standing statute (Pen. Code 647.6) that prohibits a person who has an abnormal sexual interest in children from annoying or bothering children. This crime includes the following provisions: A person who, motivated by abnormal or unnatural sexual interest in children, arranges a meeting with a minor, or a person he or she believes to be a minor, for the purpose of engaging in lewd conduct, or exposing his or her genitals, genital area or rectal area, or for having the child do so is guilty of a misdemeanor, punishable by imprisonment in county jail for up to one year, a fine of up to $5000, or both. If the person has been previously convicted of this crime, or any offense for which the person must register as a sex (More) SB 1128 (Alquist) PageE offender, the person is guilty of a felony. If the person goes to the arranged meeting place at or about the arranged time, the person is guilty of a felony and shall be punished by imprisonment in a state prison for 2, 3 or 4 years, and a fine of up to $10,000. This bill specifically provides that "prosecution under this section shall not prohibit prosecution under any other provision of law." LOITERING IN AREAS WHERE THERE ARE VULNERABLE POPULATIONS - SEX OFFENDERS (Secs. 35 and 36) Current law generally prohibits sex offenders from going into any school building or upon any school ground or adjacent street or sidewalk, unless the person is a parent or guardian of a child attending that school, or is a student at the school or has prior written permission for the entry from the chief administrative officer of that school, if they remain there after being asked to leave, as specified. (Penal Code 626.8.) This bill would revise this provision to remove from its text the reference to registered sex offenders. This bill would enact a new crime to provide that any registered sex offender who comes into any school building or upon any school ground, without lawful business thereon or written permission from the chief administrative official of that school, or who loiters about any street, sidewalk, or public way adjacent to any school building, school grounds, public playground, or other youth recreational facility where minors are present without lawful business thereon, is guilty of a misdemeanor. Under this bill , no request to leave would have to be made for the crime to apply. This bill additionally would provide that any registered sex offender whose victim was an elderly or dependent person, as (More) SB 1128 (Alquist) PageF specified, who comes onto any property where elderly or dependent persons reside without lawful business thereon or written permission from the director of the facility, is guilty of a misdemeanor. This bill would impose fine and jail time punishments, as specified. CHILD SAFETY PROGRAMS (Sec. 57) This bill states the legislative intent to create school-based programs to promote child safety and prevent child abductions. "SAFE" TEAMS Current law establishes the "County Sexual Assault Felony Enforcement" Team program, which authorizes any county to "establish and implement a sexual assault felony enforcement (SAFE) team program," as specified. (Penal Code 13887.) Current law requires that the mission of SAFE "shall be to reduce violent sexual assault offenses in the county through proactive surveillance and arrest of habitual sexual offenders, as defined in Section 667.71, and strict enforcement of registration requirements for sex offenders pursuant to Section 290. . . . The proactive surveillance and arrest authorized by this chapter shall be conducted within the limits of existing statutory and constitutional law." (Penal Code 13887.1.) This bill would revise this mission to include the following: (c) The mission of this program shall also be to provide community education regarding the purposes of (sex offender registration and Megan's Law). The goal of community education is to do all of the following: (1) Provide information to the public about ways to protect themselves and families from (More) SB 1128 (Alquist) PageG sexual assault. (2) Emphasis of the importance of using the knowledge of the presence of registered sex offenders in the community to enhance public safety. (3) To explain that harassment or vigilantism against registrants may cause them to disappear and attempt to live without supervision, or to register as transients, which would defeat the purpose of sex offender registration. Current law provides that regional SAFE teams may consist of officers and agents from the following law enforcement agencies: Police departments. Sheriff's departments. The Bureau of Investigations of the Office of the District Attorney. County probation departments. (Penal Code 13887.2.) Current law provides that, in addition, to "the extent that these agencies have available resources, the following law enforcement agencies: (1) The Bureau of Investigations of the California Department of Justice. (2) The California Highway Patrol. (3) The State Department of Corrections. (4) The Federal Bureau of Investigation." (Penal Code 13887.2(e).) Current law states the following objectives for this program: To identify, monitor, arrest, and assist in the prosecution of habitual sexual offenders who violate the terms and conditions of their probation or parole, who fail to comply with the registration requirements of Section 290, or who commit new sexual assault offenses. (More) SB 1128 (Alquist) PageH To collect data to determine if the proactive law enforcement procedures adopted by the program are effective in reducing violent sexual assault offenses. To develop procedures for operating a multijurisdictional regional task force. (Penal Code 13887.3.) Current law provides that "[n]othing in this chapter shall be construed to authorize the otherwise unlawful violation of any person's rights under the law." (Penal Code 13887.4.) This bill would require every county to establish a SAFE team. THE SEXUALLY VIOLENT PREDATOR ("SVP") CIVIL COMMITMENT LAW (Secs. 53; 61 et seq.) Basic Governing Provisions and Definitions in SVP Law Existing Law - Background Existing law includes basic constitutional principles applicable to involuntary civil commitment. As described in In re Howard N. (2005) 35 Cal.4th 117, 127-128: "The high [United States Supreme] court has repeatedly recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. Moreover, it is indisputable that involuntary commitment to a [psychiatric] hospital after a finding of probable dangerousness . . . can engender adverse social consequences to the individual." (Ibid, quoting Addington v. Texas (197) 441 U.S. 418, 425.) Under current law , the Sexually Violent Predator (SVP) law, provides for the civil commitment for psychiatric treatment of a prison inmate found to be a sexually violent predator after the person has served his or her prison commitment. (Welf. & Inst. Code 6600, et seq.) (More) SB 1128 (Alquist) PageI SVP Commitment Standards, Definitions and Related Provisions Existing Law Existing law defines a sexually violent predator as an inmate "who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Welf. & Inst. Code 6600, subd. (a).) Existing law defines a "sexually violent offense" as one of the following crimes when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (Welf. & Inst. Code 6600, subd. (a).): Rape or spousal rape. (Pen. Code 261, subd. (a)(2), 262, subd. (a)(1).) Rape or sexual penetration in concert. (Pen. Code 264.1.) Lewd conduct. (Pen. Code 288 subds. (a) or (b).) Sexual penetration. (Pen. Code 289, subd. (a).) Sodomy. (Pen. Code 286.) Oral Copulation. (Pen. Code 288a.) Existing law also describes a sexually violent offense as any crime against a child under 14 years of age that involved substantial sexual conduct, which is further defined as penetration of the vagina or rectum, oral copulation, or masturbation by the perpetrator or victim. (Welf. & Inst. Code 6600.1.) Existing law provides that the details of a prior qualifying conviction - most importantly used to establish that an offense was committed by force or duress - can be proved by documentary evidence, including preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and Department of (More) SB 1128 (Alquist) PageJ Mental Health ("DMH") evaluations. (Welf. & Inst. Code 6600, subd. (a)(3).) Existing law provides that a qualifying conviction for a sexually violent offense must also fit in one of the following categories: A conviction that resulted in a determinate prison term; A conviction prior to July 1, 1977, that resulted in an indeterminate prison term; A conviction from another jurisdiction that includes all the elements of a qualifying sexually violent offense under California law; A conviction under a predecessor statute that includes all the elements of a sexually violent offense; A prior conviction for a sexually violent offense for which the defendant received a grant of probation; A prior finding of not guilty by reason of insanity for a sexually violent offense; or A conviction resulting in a finding that the person was a mentally disordered sex offender. Existing law defines a "diagnosed mental disorder" as one that includes "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (Welf. & Inst. Code 6600, subd. (c).) Existing law defines predatory sexual acts as those committed against a stranger, casual acquaintance who has no substantial relationship with the perpetrator, or a person with whom the alleged SVP established a relationship for purposes of victimization. (Welf. & Inst. Code 6600, subd. (e).) Existing law does not require that a defendant's prior qualifying convictions be predatory. (People v. Torres (2001) 25 Cal.4th 680.) Only a defendant's likely future predatory (More) SB 1128 (Alquist) PageK sexual behavior need be established. (People v. Hurtado (2002) 28 Cal.4th 1179.) Existing law implements the SVP law as outlined below: The SVP law applies to an inmate serving a state prison term or a parole revocation term. The law requires evaluation by two specified mental health professionals according to protocols established by DMH. The evaluation must be done at least six months prior to release from custody, unless the Department of Corrections received the inmate with less than nine months to serve, or court or administrative action modified the inmate's sentence. DMH then requests the prosecutor from the county of commitment to file a petition for involuntary civil commitment and the superior court determines probable cause that the inmate is an SVP. If the court finds probable cause, a formal trial upon proof beyond a reasonable doubt is held. If the state prevails, the SVP is committed to DMH for two years of treatment, with additional two-year commitments upon successful new petition proceeding. (Welf. & Inst. Code 6601.) Existing law provides that the evaluators must agree that the inmate meets the statutory criteria for commitment before the case can be submitted to the district attorney for filing. If the evaluators disagree, additional, independent evaluators are appointed. The second pair of evaluators must agree that the person meets the requirement for SVP commitment or the case cannot proceed. (Welf. & Inst. Code 6601, subds. (c)-(e).) This Bill This bill provides that a sexually violent offense includes (More) SB 1128 (Alquist) PageL kidnapping (as defined under Penal Code 207 or 209) with the intent to commit one of a list of specified sex crimes. This bill adds assault with intent to commit a sex crime (Pen. Code 220 - essentially a combination of an attempted sex crime and an assault) as a qualifying prior SVP crime. This bill changes and expands the definitions and descriptions of qualifying prior convictions so as to define such crimes generically in terms of how the crime was committed - by force, fear or duress, including threats of future retaliation - instead of by particular crime sections and subdivisions. For example, if an oral copulation was prosecuted only under a section defined in terms of the age difference between the perpetrator and the victim but the crime also involved force or fear, this would constitute a qualifying SVP crime under this bill, when it likely would not so qualify under existing law. Review of SVP Status, Conditional Release under Treatment and Unconditional Release Existing Law Existing law provides that a person committed to the custody of DMH as an SVP shall have a current examination of his or her mental condition made at least once every year. (Welf. & Inst. Code 6605, subd. (a).) Existing law provides that unless the person waives the right to petition for conditional release to a community treatment program (Welf. & Inst. Code 6608), the superior court annually must conduct a "show cause hearing" to determine whether "probable cause exists to believe that the committed person's (More) SB 1128 (Alquist) PageM diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged." (Welf. & Inst. Code 6605, subd. (c).) Existing law provides that if the court finds probable cause in the annual review that the SVP patient no longer presents a danger of committing sexually violent offenses, the court shall order a trial to determine if the patient should be discharged. At trial, the state has the burden to prove beyond a reasonable doubt that the patient is dangerous. (Welf. & Inst. Code 6605, subds. (c)-(d).) Existing law provides that if the Director of DMH finds that the mental disorder of a person committed as an SPV has changed such that the person is not likely to commit acts of predatory sexual violence while in the community, the director shall recommend conditional release of the person. The recommendation shall be given to the committing court, the (prosecuting) county attorney and the person's attorney. The court shall then set a hearing on the matter. (Welf. & Inst. Code 6607.) This Bill This bill , in its provisions concerning annual review of SVP status, the show cause hearing, probable cause findings and the resulting trial based on a probable cause finding, is drawn from the Washington State processes. (See Comment 3, infra.) This bill provides that the annual examination and report of the mental status of an SVP patient shall consider whether or not the patient currently meets the definition of an SVP, and whether or not the patient can be conditionally released with supervision, or unconditionally released. This bill provides that DMH, in the form of a declaration, shall report to the court as to results of the annual examination. (More) SB 1128 (Alquist) PageN This bill provides that if DMH determines that an SVP patient no longer meets the statutory definition of an SVP, or that the patient can be safely released conditionally, DMH shall authorize the person to petition for conditional release or unconditional discharge. This bill provides that at the time of the issuance of the annual report, the SVP patient shall be informed of his or her right to petition for conditional or unconditional release at a trial. This bill provides that a trial shall be ordered where the defendant establishes probable cause to believe that he or she is no longer an SVP, or that he or she can be safely conditionally released under supervision. This bill provides that, if the patient does not affirmatively waive the right to petition for conditional or unconditional release, the court shall set a show-cause hearing to determine whether there is probable cause that 1) the patient can be safely conditionally released under supervision, and 2) whether the patient no longer is an SVP. This bill provides that the court at the show-cause hearing shall consider documentary evidence. This bill provides that the SVP patient may be represented by counsel at the show-cause hearing, but the patient does not have a right to be present. This bill provides that at the show-cause hearing, the state shall present prima facie evidence 1) that the person continues to meet the definition of an SVP, and 2) that the person cannot be safely released into the community under supervision. This bill provides that in presenting prima facie evidence the state can rely on the annual report. (More) SB 1128 (Alquist) PageO This bill provides that the person can present responsive declarations and affidavits to which the state can reply. This bill provides that the court shall set a trial if the court finds either 1) the state failed to present a prima facie case that the person continues to be an SVP or that he cannot be safely released under supervision, or 2) that probable cause exists that the person no longer fits the definition of an SVP or that the person can be safely released into the community under supervision. This bill requires the court to set a trial on either or both issues, depending on the results of the show-cause hearing. This bill provides that, at the show-cause hearing, if the court has not previously considered the issue of whether or not the person can be safely released into the community under supervision, the court shall consider this issue. This bill provides that if the court orders a trial, the state shall have the burden to prove beyond a reasonable doubt that 1) the person continues to meet the definition of an SVP, or 2) the person can be safely released into a less restrictive alternative in the community under supervision. In setting the trial, the court shall frame the issues to be determined in the trial. This bill , as particularly concerns a trial on conditional release, provides that the state has the burden to prove that either conditional release is either 1) not in the best interests of the person, or 2) any less restrictive alternative and conditional release would not include conditions that would adequately protect the community. This bill provides that either the state or the person can demand a jury trial if, pursuant to the show-cause requirements described above, a trial is ordered. (More) SB 1128 (Alquist) PageP This bill provides that the person shall be entitled to all the constitutional protections available at the original commitment trial. This bill provides that a new trial on the status of an SVP can only be ordered if the probable cause includes evidence from a licensed professional of the following: Physiological changes, such as paralysis, stroke, et cetera, that renders a person permanently unable to commit a sexually violent act; or Changes in mental condition brought about by positive response to treatment that renders the person safe for conditional or unconditional release. This bill provides that a change in a single "demographic" factor - age, marital status, gender - does not constitute a change justifying probable cause. This bill provides that jurisdiction of the court over a conditionally released person continues until the person is unconditionally discharged. This bill provides that the court must find all of the following before ordering conditional release: The person will be treated by a qualified treatment provider; The treatment provider has presented a specific course of treatment, has agreed to assume responsibility for treatment and will regularly report to the court, the prosecutor, and DMH; Housing exists that is sufficiently secure to protect the community, and the person or agency providing housing has (More) SB 1128 (Alquist) PageQ agreed to accept the person and provide the necessary level of security; The agency or person providing housing must agree to provide notice that the person has left his residence; The released person agrees to comply with the conditions imposed by the court and to comply with the treatment provider; and The person shall comply with supervision of DMH or CDCR. This bill provides that at the close of evidence at the trial, or through summary judgment proceedings at the show-cause hearing, if the court finds that that there is no legally sufficient basis to present the issues of release to a jury, the court shall grant a motion by the state on the issue of conditional release as a matter of law. This bill provides that the court, in ordering conditional release, shall impose all conditions necessary to ensure the safety of the community and compliance with the treatment program. This bill provides that if the person cannot be released such that compliance with conditions of release cannot be met and community safety assured, the person shall be remanded to the custody of the secure treatment facility in DMH. This bill provides that any person or entity designated to provide treatment or other services shall agree in writing to provide treatment, monitoring and supervision under the SVP release statutes. This bill provides that a person providing services, treatment or monitoring may be compelled to testify and all evidentiary privileges waived. This bill provides that the court shall review the case of a conditionally released person each year at a minimum. This bill (More) SB 1128 (Alquist) PageR provides that the sole issue to be considered at the review shall be whether or not the person shall remain on conditional release. This bill provides that DMH shall provide a recommendation to the court before the court places a person in a conditional release program. SVP Parole Provisions (and Related General Parole Rules) Existing Law Existing law generally provides that inmates serving a determinate term of imprisonment shall be released on parole for a period of three years. Specified sex offenders - those released after serving a determinate term of imprisonment and specified in this bill - shall be released on parole for a period of five years. Specified sex offenders - those released by the Board of Prison Terms following an indeterminate term of imprisonment and specified in this bill - shall be released on parole for a period of five years subject to an additional five-year period of parole, as specified. (Pen. Code 3000, subd. (b)(1) and (3).) Existing law provides that a finding that a person is an SVP "shall not toll, discharge or otherwise affect that person's period of parole." (Pen. Code 3000, subd. (a)(4).) This Bill This bill tolls parole for any person evaluated as a possible SVP or committed to the SVP program. Parole tolling under this bill applies during the following periods: Evaluation of the person by experts and through the probable (More) SB 1128 (Alquist) PageS cause hearing; During the commitment trial process following a finding or probable cause; and During commitment to the SPV program. This bill provides that the period of parole includes the period of conditional release in the community under supervision. CHILD PORNOGRAPHY AND RELATED STATUTES (Secs. 21-34) Existing Law Existing law provides that any person who "hires, employs, or uses" a minor to assist in committing any of the acts described in Penal Code Section 311.2 (see next paragraph) is guilty of a misdemeanor. If the person has a prior conviction, he or she is guilty of a misdemeanor, but the court may impose a fine of up to $50,000, and may sentence the defendant pursuant to Penal Code Section 311.9, which allows felony punishment for repeated convictions of child pornography related crimes. (Pen. Code 311.4, subd. (a).) Existing law , as set out in four subdivisions in Penal Code Section 311.2, defines various crimes related to the distribution or sale of obscene matter and matter involving minors engaged in sexual conduct: Possessing or importing into California any obscene matter for sale or distribution without commercial purposes: misdemeanor for first conviction, felony and increased fines for subsequent convictions. Possessing, importing, etc., for commercial sale or distribution any obscene matter that includes depictions (whether obscene or not) of minors engaging in actual or simulated sexual conduct: felony, with 2, 3, or 6 year terms and $100,000 fine. (More) SB 1128 (Alquist) PageT Possessing, importing, etc., for sale or distribution to adults, without commercial purpose, any matter that depicts minors engaged in actual or simulated sexual conduct: misdemeanor, and apparently a felony for second conviction, pursuant to Section 311.9. Possessing of importing, etc., for distribution to minors any matter that depicts minors engaged in actual or simulated sexual conduct: felony, with penalty 16 months, 2 years or 3 years in prison. Commercial consideration is not required. Existing law provides that any person who hires or uses a minor to model or pose, or uses a minor to assist in modeling or posing that involves depictions of minors engaged in sexual activity for commercial purposes is guilty of a felony, punishable by imprisonment in the state prison for 3, 6, or 8 years. (Pen. Code 311.4, subd. (b).) Existing law provides that any person who hires or uses a minor to model or pose, or uses a minor to assist in modeling or posing that involves depictions of minors engaged in sexual activity for other than commercial purposes, is guilty of a felony, punishable by imprisonment in the state prison for 16 months, 2 years or 3 years. (Pen. Code 311.4, subd. (c).) Existing law provides that with regard to any obscene matter depicting a person under the age of 18 engaged in actual or simulated "sexual conduct," any person who sends, imports, produces or duplicates such material, with the intent to distribute the material, or who offers to do so, is guilty of an alternate felony-misdemeanor, punishable by up to 1 year in county jail, a fine up to $1000, or both, or imprisonment in state prison for 16 months, 2 years, or 3 years, and a fine of up to $10,000. Exceptions apply to law enforcement investigations, legitimate scientific/educational activities, or the lawful acts of married minors. (Pen. Code 311.1.) (More) SB 1128 (Alquist) PageU Existing law provides that a person who violates Section 311.5 (promotional material involving obscenity) or Section 311.2 (distribution or sale of obscene material or child pornography), except subdivision (b) of Section 311.2 (commercial distribution of obscene matter depicting minors), is a misdemeanor punishable by a fine of not more than $1000 plus $5 for each additional unit of prohibited material, not to exceed $10,000, or by imprisonment in the county jail for not more than six months plus one day for each additional unit of prohibited material, not to exceed 360 days in the county jail, or by both such fine and imprisonment. If such person has previously been convicted of any offense in this chapter, or of a violation of Section 313.1, a violation of Section 311.2 or 311.5, except subdivision (b) of Section 311.2, is punishable as a felony. (Pen. Code 311.9, subd. (a).) Existing law provides that a person who violates Section 311.4 (use of a minor in the production or distribution of illegal pornography) is punishable by a fine of not more than $2000 or by imprisonment in the county jail for not more than one year, or both. If the person has been previously convicted of a violation of Section 311.4, he or she is guilty of a felony, punishable by imprisonment in the state prison. (Pen. Code 311.9, subd. (b).) Existing law provides that a person who violates Section 311.7 (conditioning book, newspaper, et cetera, distribution or franchise on acceptance of obscene material) is guilty of a misdemeanor, punishable by a fine of not more than $1000 or imprisonment in the county jail for not more than 6 months, or both. For a second and subsequent offense the defendant shall be punished by a fine of not more than $2000, or by imprisonment in the county jail for not more than one year, or both. If such person has been twice convicted of a violation of crimes involving illegal sexual material, a violation of Section 311.7 is punishable as a felony. (Pen. Code 311.9, subd. (c).) Existing law provides that Penal Code Section 311.11 (possession (More) SB 1128 (Alquist) PageV of depictions of minors engaged in actual or simulated sexual conduct) does not apply to "drawings, figurines, statutes, or any film rated by the Motion Picture Association of America [MPAA]." Such ratings include G, PG, PG-13, R and NC-17, but not XXX or the like). (Pen. Code 311.11, subd. (d).) Existing law defines "sexual conduct," whether actual or simulated, as the following: masturbation, sexual intercourse, oral copulation, anal intercourse, bestiality, sexual sadism, lewd or lascivious penetration of the vagina or rectum by any object, exhibition of the genital, pubic or rectal areas for purposes of sexual stimulation of the viewer, and lewdly performed excretory functions. (Pen. Code 311.4.) Existing law provides that "an act is simulated when it gives the appearance of being sexual conduct." (Pen. Code 311.4.) Existing law provides that any person who sends "harmful matter" (obscenity from the perspective of minors) to a minor to seduce or arouse is guilty of an alternate misdemeanor-felony, punishable by one year in county jail or 16 months, 2 or 3 years in state prison for the first offense and a felony for a second or subsequent offense. (Pen. Code 288.2.) Existing law provides that a person who possesses or controls matter depicting a person under the age of 18 engaged in actual or simulated "sexual conduct" is guilty of a misdemeanor, punishable by imprisonment in the county jail for up to one year, a fine not exceeding $2500, or both. The subject material need not be obscene under this section. (Pen. Code 311.11.) Existing law , as interpreted by relevant appellate decisions, provides that Penal Code Section 311.11 "requires a real minor and also requires knowledge of minority on the part of the perpetrator." (People v. Kurey (2001) 88 Cal.App.4th 840, 847.) Existing law provides that if a person convicted of simple (More) SB 1128 (Alquist) PageW possession of child pornography (Pen. Code 311.11, subd. (a)) has a prior conviction for possession of matter that depicts minors engaged in actual or simulated sexual conduct (Pen. Code 311.11), or a conviction for either commercial distribution of sexual material depicting minors (Pen. Code 311.2, subd. (b)), or use of a minor in making such material for commerce (Pen. Code 311.4, subd. (b)) he or she is guilty of a felony and subject to imprisonment in the state prison for 2, 4, or 6 years and a fine of up to $10,000. (Pen. Code 311.11, subd. (b).) Existing law provides that any person who hires or uses a minor to model or pose, or uses a minor to assist in modeling or posing that involves depictions of minors engaged in sexual activity for commercial purposes is guilty of a felony, punishable by imprisonment in the state prison for 3, 6, or 8 years. (Pen. Code 311.4, subd. (b).) Existing law provides that any person who hires or uses a minor to model or pose, or uses a minor to assist in modeling or posing that involves depictions of minors engaged in sexual activity for other than commercial purposes, is guilty of a felony, punishable by imprisonment in the state prison for 16 months, 2 or 3 years. (Pen. Code 311.4, subd. (c).) This Bill This bill increases the penalties for hiring or using a minor to model or pose, or using a minor to assist in modeling or posing, in depictions of minors engaged in sexual activity for other than commercial purposes, from 6 months, 2 or 3 years in prison, to 2, 3 or 4 years in prison. This bill reorganizes the obscenity and child pornography law. The bill makes the following organizational changes: Eliminates redundant definitions of the forms of "matter" that can be or are prohibited under the obscenity and child (More) SB 1128 (Alquist) PageX pornography law; Specifies that child pornography - which need not be obscene - must be in a visual form; Places the major provisions concerning possession of child pornography and distribution of such material in adjoining sections and subdivisions; and Places the provisions concerning distribution or exchange of obscene material, and offering or intending to distribute or exchange such material, in a single section. This bill increases the penalties for possession and for distribution or exchange of child pornography, and the penalties for offering or intending to distribute or exchange child pornography, as follows<1>: Possession of Child Pornography (first-time convictions) The matter depicts a child under 16 engaged in explicit sexual conduct<2>: felony, with a penalty of 16 months, 2 years or 3 years in prison. The matter depicts a minor who is 16 or 17 years old engaged in explicit sexual conduct: alternate felony-misdemeanor. ------------------------- <1> See Comment 11, infra, for a chart depicting these proposed sentencing changes and current law. <2> For purposes of these provisions, "explicit sexual conduct" "means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation on bare skin, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, graphic and explicit display of the genitals or pubic or rectal area of an overtly sexual character, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals." (More) SB 1128 (Alquist) PageY The matter depicts sexual conduct<3> not explicit that depicts a minor under the age of 16: alternate felony-misdemeanor. The matter depicts sexual conduct not explicit that depicts a minor who is 16 or 17 years: misdemeanor. Possession of Child Pornography with the Intent to Distribute or Exchange, or Offering to Distribute or Exchange The matter depicts a child under 16 engaged in explicit sexual conduct: felony, with a penalty of 2, 3, or 4 years in prison. The matter depicts a minor who is 16 or 17 years old engaged in explicit sexual conduct: felony. The matter depicts sexual conduct not explicit that depicts a minor under the age of 16: -------------------------- <3> "Sexual conduct" under these provisions "means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct." (More) SB 1128 (Alquist) PageZ felony. The matter depicts sexual conduct not explicit that depicts a minor who is 16 or 17 years: alternate felony-misdemeanor. Where the person distributing child pornography is a registered sex offender, the crime is a felony, punishable by a term of 3, 6 or 8 years in prison. This bill provides that where a person has been previously convicted of any registerable sex crime, possession of child pornography is a felony, with a prison term of 2, 4 or 6 years. Statute of Limitations - Child Pornography Current law generally provides for a six year statute of limitations for pornography offense. (Penal Code 800) This bill would extend that period to within 10 years of the date of production of the pornographic material. Asset Forfeiture Existing law includes various provisions for the forfeiture of profits made from illicit activity, including specified child pornography and exploitation crimes. (Health & Saf. Code 11469; Pen. Code 186.2.) Existing law provides that the child pornography and exploitation forfeiture, as part of the scheme for criminal asset forfeiture in organized crime prosecutions, shall be done in conjunction with the criminal trial and is limited to criminal discovery rules. (Pen. Code 186.2-186.8.) This bill provides broadly that the profits or proceeds of any production, sale, et cetera of child pornography shall be (More) SB 1128 (Alquist) PageA subject to forfeiture. The forfeiture proceedings shall be conducted under the rules of civil discovery. RISK ASSESSMENT FOR SEX OFFENDERS (Secs. 13-19; 48; 49; 54; 55) Current law provides that the "Department of Corrections, to the maximum extent practicable and feasible, and subject to legislative appropriation of necessary funds, shall ensure, by July 1, 2001, that all parolees under active supervision and deemed to pose a high risk to the public of committing violent sex crimes shall be placed on an intensive and specialized parole supervision caseload." (Penal Code 3005; emphasis added.) Existing law states the legislative finding that "continuous electronic monitoring has proven to be an effective risk management tool for supervising high-risk persons on probation who are likely to reoffend where prevention and knowledge of their whereabouts is a high priority for maintaining public safety." (Penal Code 1210.7.) Current law provides that an inmate who is released on parole for a violation of Section 288 or 288.5 whom the Department of Corrections and Rehabilitation determines poses a high risk to the public shall not be placed or reside, for the duration of his or her parole, within one-half mile of any public or private school including any or all of kindergarten and grades 1 to 12, inclusive. (Penal Code 3003.) Mandated Risk Assessment for All Adult Male Registered Sex Offenders; STATIC-99 This bill would require that, commencing on January 1, 2007, all adult males who are required to register as sex offenders shall be subject to assessment by the STATIC-99 assessment tool. This bill would provide that the STATIC-99 and its successor instruments shall be the sole actuarial risk assessment instrument used for registered sex offenders. (More) SB 1128 (Alquist) PageB This bill would provide that, commencing on January 1, 2007, the actuarial risk assessment instrument for adult males required to register as sex offenders shall be the STATIC-99. This bill would provide that there shall be four risk assessment tier levels assignable to registered sex offenders under this instrument: low, moderate-low, moderate-high, and high. This bill would provide that CDCR, in consultation with the Attorney General and local law enforcement, shall establish and implement a schedule for conducting, no later than January 1, 2012, STATIC-99 assessments of adult male registered sex offenders living in California who no longer are in custody, on probation, or on parole as of the effective date of this section. This bill would require that these persons be administered a STATIC-99 assessment according to the implementation schedule during their annual registration update by persons authorized to administer the instrument. This bill would require that the schedule adopted by DOJ shall give priority to assessing those registrants with the most recent sex offense convictions. This bill would provide that any adult male required to register as a sex offender may seek an assessment before their scheduled assessment period at his or her own cost as determined by the department. Mandated Periodic Review and Update of Risk Assessment Instrument This bill would require that on or before January 1, 2010, CDCR, in consultation with DMH and experts in sex offender risk assessment and the use of actuarial instruments in predicting sex offender risk, to periodically evaluate and update the STATIC-99 or its successor instrument to ensure that California's standardized actuarial assessment instrument for (More) SB 1128 (Alquist) PageC assessing sex offender risk reflects reliable, objective and well-established protocols for predicting sex offender risk of recidivism, has been scientifically validated with multiple cross-validations, and is widely accepted by the courts. Female and Juvenile Offenders - Identification of Appropriate Actuarial Risk Assessment Instruments This bill would require, on or before January 1, 2008, CDCR, in consultation with the Department of Mental Health and experts in sex offender risk assessment and the use of actuarial instruments in predicting sex offender risk, to research actuarial risk assessment tools for female and juvenile registered sex offenders, and to make recommendations to the Governor and to the Legislature concerning the appropriate actuarial risk assessment instrument to be used to assess those populations. Training of Persons to Perform Assessments This bill would require, on or before January 1, 2008, CDCR, in consultation with DMH, and experts in sex offender risk assessment and the use of actuarial instruments in predicting sex offender risk, to establish a training program for probation officers, parole officers, and any other persons authorized by law to perform risk assessment. CDCR would be required under this bill to use an expert in the field of risk assessment and the use of actuarial instruments in predicting sex offender risk to conduct periodic training. This bill would require probation departments and regional parole officers to designate persons within their organizations to attend a yearly training and shall train others within their organizations who are designated to perform risk assessments as required or authorized by law. This bill would require probation officers who conduct sex offender risk assessments to be trained in an approved program (More) SB 1128 (Alquist) PageD as specified, and to receive updated training no less frequently than every two years, as determined by CDCR. Risk Assessments at Presentencing, with Results Noted in Presentencing or Probation Officer's Report This bill would require probation officers trained in the use of STATIC-99 to perform a presentencing risk assessment of every adult male convicted of an offense that requires him to register as a sex offender. This bill would require probation officers to assign a risk assessment tier level score to the assessment, and to include that score in a presentencing or probation officer's report. Facts of Offense Sheet This bill would require probation officers to compile a Facts of Offense Sheet for every adult male convicted of an offense that requires him to register as a sex offender containing the following information concerning the offender and his offense: name; all known aliases; CII number; physical description; criminal history, including registerable sex offenses, other offenses, and arrests that did not result in conviction for sexual or violent offenses; unique circumstances of the offense for which registration is required, including but not limited to, weapons used or victim pattern; risk assessment tier level; and type of victims targeted in the past. This bill would provide that the defendant may move the court to correct the Facts of the Offense Sheet, and additionally provide that any corrections to the Facts of the Offense Sheet offered by the defendant shall be made consistent with Section 1204 of (More) SB 1128 (Alquist) PageE the Penal Code. This bill would require the Facts of Offense Sheet to be included in the probation officer's report, and to also be forwarded to the incarcerating agency, if any. In addition, this bill would require that a copy of the Facts of Offense Sheet be sent by the probation department to the registering law enforcement agency in the jurisdiction where the person will reside on supervised probation within three days of the person's release on probation. Probation also would be required to send a copy of the Facts of Offense Sheet to the Department of Justice Sex Offender Tracking Program within three days of the person's sex offense conviction, and would require that it be made part of the registered sex offender's file maintained by the Sex Offender Tracking Program. This bill would provide that the Facts of Offense Sheet shall thereafter be made available to law enforcement by the Department of Justice, which shall post it with the offender's record on the Department of Justice Internet Web site, and shall be accessible only to law enforcement. This bill would provide that if the registered sex offender is sentenced to a period of incarceration, at either the state prison or a county jail, the Facts of Offense Sheet would be required to be sent by CDCR or the county sheriff to the registering law enforcement agency in the jurisdiction where the registered sex offender will be paroled or will live on release, within three days of the person's release, with comparable provisions applicable to the Department of Mental Health if the person is committed to DMH. Assessments of Adult Males Incarcerated in Prison or Committed to DMH Current law generally requires probation to provide CDCR with an offense report for persons committed to CDCR. (Penal Code 1203(c).) (More) SB 1128 (Alquist) PageF This bill would require that if the person is being committed to CDCR for a registerable sex offense, the probation officer shall perform a risk assessment of the person using the STATIC-99 assessment tool, as specified. This bill would require that all adult males who have been convicted of an offense for which they are required to register as a sex offender and who are incarcerated in state prison or committed to the Department of Mental Health be subject to sex offender risk assessment as provided by this bill. This bill would require that the assessment take place at least four months, but no sooner than 10 months, prior to release from incarceration or commitment. This bill would require CDCR to conduct risk assessments of all parolees under active supervision and deemed to be high risk, as specified. CDCR - Assessment of Prison Inmates This bill would require CDCR to use the STATIC-99 assessment tool to perform a risk assessment on all male inmates who are convicted of a registerable sex offense, as specified, upon commitment to the department unless they were assessed prior to commitment. This bill further would provide that, for those inmates already in the custody of the department, the assessment shall be performed prior to being released on parole, as specified. CDCR Inmates - Mandatory Control and Containment Programming This bill would require that inmates who have a risk assessment of moderate-high or high risk for committing a sex offense, according to the STATIC-99, participate in sex offender control and containment programming while incarcerated and while on parole, as developed and specified by CDCR. This bill would (More) SB 1128 (Alquist) PageG require that programming be based on current, evidence-based correctional standards that is proven to reduce the risk of reoffending. This bill would provide that notwithstanding any other provision of law, inmates who fail to participate in the programming prescribed shall not be eligible to earn any credits, as specified. This bill additionally would provide that an inmate serving a life term may be excluded from sex offender programming until he or she receives a parole date and is within five years of that date, unless CDCR determines that the programming for that inmate is necessary for the public safety. This bill would provide that inmates who are condemned to death or sentenced to life without the possibility of parole are ineligible to participate in sex offender programming. Pre-Release Risk Assessment This bill would require CDCR to conduct a pre-release risk assessment, and would require that the person administering the assessment be trained through an approved program, with updated training no less frequently than every two years as determined by CDCR, as specified. This bill additionally would require that adult male registered sex offenders who, subsequent to their conviction for a sex offense, are convicted of a separate criminal offense resulting in incarceration or commitment, or which would require a probation officer's report, but who have not been the subject of a risk assessment, be assessed in accordance with these provisions. Parolees and Probationers This bill would require adult male registered sex offenders who (More) SB 1128 (Alquist) PageH are on probation or parole as of the effective date of this section be subject to a risk assessment using the STATIC-99. This bill additionally would impose its risk assessment requirements on adult male sex offenders convicted in a jurisdiction other than California who are required to register while living in California, who are being supervised in California under an interstate compact or who are on federal or military supervision in California. This bill would assign priority to assessing those offenders who were assigned the highest risk level under the STATIC-99 in the jurisdiction where they were convicted. Current law generally requires a probation officer to immediately investigate and make a written report to the court of his or her findings and recommendations, including his or her recommendations as to the granting or denying of probation and the conditions of probation, if granted. (Penal Code 1203.) This bill would require that if a person is convicted of a felony registerable sex offense, the probation officer shall administer the STATIC-99, as specified, to determine the person's risk of reoffending, and would require the results of the assessment be part of the report to the court. Current law provides that if a person is convicted of a misdemeanor, the court may either refer the matter to the probation officer for an investigation and a report or summarily pronounce a conditional sentence. This bill would provide that if the crime requires the person to register as a sex offender, the probation officer would be required to administer the STATIC-99, as specified, to determine the person's risk of reoffending. Access to Records by Persons Authorized to Perform STATIC-99 Assessment (More) SB 1128 (Alquist) PageI This bill would provide that any person authorized and trained to perform STATIC-99 risk assessments shall be granted access to all relevant records pertaining to a registered sex offender, as specified. This bill would require that all state and local agencies and departments that maintain records that contain information about registered sex offenders, as specified, maintain those records during the lifetime of the registered sex offender. Specialized sex offender caseloads - Probation and Parole (Secs. 17; 47; 54) This bill would require probation departments and the parole authority to create specialized caseloads for all sex offenders, and to develop expertise in sex offender management. This bill would require that sex offenders assessed at high risk levels be monitored by agents responsible for reduced case loads. This bill would require that the risk assessment tier level assigned to a registered sex offender be used to determine the level of monitoring and control on supervision. Current law provides that persons placed on probation by a court are under the supervision of the county probation officer, who determines both the level and type of supervision consistent with the court-ordered conditions of probation. This bill would require each county to designate certain probation officers to monitor registered sex offenders, as specified. This bill would require that these probationers report more frequently to one of those designated probation officers than any other probationer is required to report, and shall be subject to intensive scrutiny by that designated officer. (More) SB 1128 (Alquist) PageJ This bill would require each probation department to "develop control and containment programming, in conjunction with (CDCR) for persons who are designated at a moderate-high or high level of risk based on the STATIC-99, and shall require participation in appropriate programming of those persons as a condition of probation." Current law provides that the "Department of Corrections, to the maximum extent practicable and feasible, and subject to legislative appropriation of necessary funds, shall ensure, by July 1, 2001, that all parolees under active supervision and deemed to pose a high risk to the public of committing violent sex crimes shall be placed on an intensive and specialized parole supervision caseload." (Penal Code 3005.) This bill would revise this provision to incorporate the use of the STATIC-99, and to require that these parolees report frequently to designated parole offices. This bill would require CDCR to develop control and containment programming for sex offenders who have been assessed pursuant to Section 5040 and shall require participation in appropriate programming as a condition of parole. Plea Bargaining Scrutiny - Sex Crimes that are Subject to Life Term Sentencing (Sec. 46) Existing law provides that in presenting a plea bargain to a crime defined as a "serious felony," the prosecutor must demonstrate to the court that the plea bargain is necessary because there is insufficient evidence to prove the serious felony or that the sentence to be imposed under the plea bargain would not be substantially different had the bargain not been made. (Pen. Code 1192.7.) This bill states the intent of the Legislature that district attorneys prosecute violent sex crimes under statutes that provide sentencing under life-term schemes such as the (More) SB 1128 (Alquist) PageK one-strike law (Pen. Code 667.61), three strikes (Pen. Code 1170.12) and the habitual sexual offender law (Pen. Code 667.71), rather than by engaging in plea bargaining. This bill provides that where a plea bargain is made in a case where the defendant was charged with a sex crime that would be punished by a life-term sentence, the prosecutor shall state on the record why a sentence under those provisions was not sought. SEX CRIME SENTENCING New Crime: 25 to Life for Sex with a Child Under current law a single count (chargeable and punishable act) of rape is generally punishable by imprisonment in the state prison for 3, 6 or 8 years. (Penal Code 264.) This bill would enact a new crime providing that any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life. Increased Parole Period for Persons Convicted of Violent Sex Crimes Existing law generally provides that inmates serving a determinate term of imprisonment shall be released on parole for a period of three years. Specified sex offenders (those released after serving a determinate term of imprisonment and specified in this bill) shall be released on parole for a period of five years. Specified sex offenders (those released by the Board of Prison Terms following an indeterminate term of imprisonment and specified in this bill) shall be released on parole for a period of five years subject to an additional (More) SB 1128 (Alquist) PageL five-year period of parole, as specified. (Pen. Code 3000, subd. (b)(1) and (3).) This bill increases parole for persons convicted of violent sex crimes - sex offenses included in the list of violent crimes in Penal Code Section 667.5, subdivision (c) - to 10 years. This bill further provides that a person released on parole for 10 years for a violent sex crime can be held on parole and in custody (for parole violations) for a total of 15 years. One-Strike (Life-Term) Sentencing for Oral Copulation or Sexual Penetration of a Child (Other than Rape) Existing Law Existing law includes the "one-strike" sex crime sentencing law that provides sentences of 15 years or 25 years to life in certain sex crimes if specified circumstances in aggravation are found to be true. (Pen. Code 667.61.) Existing law states that the qualifying sex crimes under the "one-strike" sex law are forcible rape, forcible spousal rape, rape by a foreign object, forcible sodomy, forcible oral copulation, specified sex crimes in concert, lewd and lascivious acts with a child under the age of 14 accomplished by force or duress, and lewd and lascivious acts with a child under the age of 14 accomplished by other than force or duress where the defendant is not eligible for probation. (Pen. Code 667.61, subd. (c).) Existing law provides that if one of the enumerated aggravating factors set out in Section 667.61, subdivision (d), is found to be present, the qualifying sex offense is punishable by a term of 25 years to life. (Pen. Code 667.61, subd. (a).) Single Factor - 25 years to life : Defendant was previously convicted of one of the qualifying (More) SB 1128 (Alquist) PageM sex offenses Defendant kidnapped the victim substantially increasing the risk of harm Defendant inflicted aggravated mayhem or torture The crime involved residential burglary with the intent to commit a sex offense Existing law provides if one of the enumerated aggravating factors in Section 667.61, subdivision (e) is found to be present, the qualifying sex offense is punishable by a term of 15 years to life. If the crime involves two or more of these factors, the defendant shall receive a term of 25 years to life. (Pen. Code 667.62, subds. (a)-(b).) One Factor - 15 years to life; Two Factors - 25 years to life : Defendant committed the offense in the course of a residential burglary Defendant kidnapped the victim Defendant personally used a dangerous or deadly weapon Defendant inflicted great bodily injury The victim was tied or bound The crime involved more than one victim The defendant administered a controlled substance by force, violence or fear. (Pen. Code 667.61, subd. (e).) Existing law provides that any person who commits a lewd or lascivious act with a child under the age of 14 years shall be imprisoned in state prison for 3, 6 or 8 years. (Pen. Code 288.) This Bill This bill adds two new crimes to the crimes subject to one-strike sentencing: oral copulation involving a child under the age of 10 and sexual penetration of a child under the age of 10. This bill adds corresponding aggravating one-strike factors (More) SB 1128 (Alquist) PageN applicable where the child orally copulated the adult perpetrator and where the adult sexually penetrated the child, respectively. Additional One-Strike Crimes and One-Strike Organization This bill defines as one-strike crime the use of credible threats of future retaliation to commit rape (including spousal rape) or oral copulation and sodomy. This bill defines as one-strike crimes the following forms of oral copulation in concert: oral copulation in concert by force or coercion, credible threats of future retaliation and where the victim is mentally disordered, developmentally disabled or physically disabled. This bill defines as one-strike crimes the following forms of sodomy in concert: sodomy in concert by force or coercion and by credible threats of future retaliation. Elimination of Sentencing Credits for One-Strike Inmates Existing law provides that a defendant sentenced to a term of imprisonment of either 15 years to life or 25 years to life under the provisions of the "one-strike" sentencing scheme shall not have his or her sentence reduced by more than 15% by good-time/work-time credits. (Penal Code 667.61, subd. (j).) This bill eliminates conduct/work credits for inmates sentenced under the one-strike law. This bill eliminates a provision allowing probation for a person convicted under the one-strike law if the person qualifies for probation under Penal Code Section 1203.066, which allows probation for persons convicted of lewd conduct only under (More) SB 1128 (Alquist) PageO limited circumstances.<4> Continuous Sexual Abuse of a Child as a One-Strike Crime Existing law provides that "continuous sexual abuse of a child" is committed where a person who has recurring access to a child engages in three or more acts of "substantial sexual conduct" or lewd conduct with a child under the age of 14 over a period of at least three months' time. It is punished by a prison term of 6, 12 or 16 years. (Pen. Code 288.5.) This bill adds continuous sexual abuse of a child as a one-strike crime. Aggravated Kidnapping (for Purposes of Sex Crime) - Life Terms Existing Law Existing law generally defines kidnapping as the taking and carrying away of another by force or fear, and punishes this crime by imprisonment in the state prison for 3, 5, or 8 years. The element of carrying away is defined as "asportation." (Pen. Code 207, subd. (a), and 208, subd. (a); People v. Martinez (1999) 20 Cal.4th 225.) Existing law does not require asportation in kidnapping for ransom. Kidnapping for ransom can be proved by false imprisonment and ransom demands. Kidnapping for ransom is punishable by life in prison without parole where the victim dies, suffers bodily harm, or is subjected to a substantial likelihood of death, and by life with the possibility of parole --------------------------- <4> As one-strike factors are charged by the district attorney, the prosecutor can effectively control whether a defendant may be eligible for probation for a sex crime. For the most part, the prosecutor's charges control whether a defendant is eligible for probation for lewd conduct, per se. (More) SB 1128 (Alquist) PageP in other circumstances. (People v. Anderson (1979) 97 Cal.App.3d 419, 425; Pen. Code 209, subd. (a).) Existing law provides that "aggravated kidnapping" - kidnapping for robbery, rape or spousal rape, oral copulation, sexual penetration or sodomy, where the movement of the victim substantially increased the risk of harm beyond that inherent in the underlying offense - is punishable by imprisonment in the state prison for life with the possibility of parole. (People v. Martinez (2000) 20 Cal.4th 225; Pen. Code 209, subd. (b).) Existing law , as set out in the kidnapping for robbery case of People v. Rhoden (1972) 6 Cal.3d 519, provides that aggravated kidnapping requires that the movements of the victim have been accomplished by force, rather than by fraud or the like. Existing law provides that a person committed to prison for life cannot be granted parole for 7 years, unless a longer period of time is specified. (Pen. Code 3046.) Existing law provides that any person who commits a lewd or lascivious act with a child under the age of 14 years shall be imprisoned in state prison for 3, 6 or 8 years. (Pen. Code 288.) Where force or duress was used the court can or must impose fully consecutive terms for each separate count. (Pen. Code 667.6, subds. (c) and (d).) Existing law defines a lewd act with a child as: Any touching (through clothing or on the skin) of a child (by the defendant or by the child at the instigation of the defendant); Done for sexual gratification (of the perpetrator or the child). (People v. Martinez (1995) 11 Cal.4th 434, 452.) While lewd conduct generally involves sexually motivated touching of a child's breasts, buttocks or external sexual organs, lewd conduct may involve sexually motivated touching of any part of the body with sexual intent. (More) SB 1128 (Alquist) PageQ (Ibid.) Defined sex crimes (rape, oral copulation, etc.) may also be charged as lewd conduct. (People v. Pearson (1986) 42 Cal.3d 351.) Existing law defines two forms of lewd conduct with a child under the age of 14: 1) Where the crime is accomplished by force, fear, duress or menace. 2) Where no force, fear, duress, etc., is used. The sentence for the crime itself is the same whether or not force or duress was used. However, numerous other consequences apply based on whether or not the crime involved force or duress. (Pen. Code 288, subds. (a)-(b).) Existing law , as interpreted by the courts, defines or describes force, duress and menace thus: Force : The majority of cases hold that the element of "force" is shown by force that allowed the defendant to accomplish the act without the child's consent. (People v. Neel (1993) 19 Cal.App.4th 1784.) Duress : Direct or implied threat of force, violence, danger, hardship or retribution sufficient to allow commission of the act. The jury shall consider all of the circumstances in determining whether duress was proved, including the age of the victim and his or her relationship to the defendant. (People v. Pitmon (1985) 170 Cal.App.3d 38, 47-51.) (e.g., a threat to send a child to bed without dinner would appear to constitute duress.) Existing law provides that lewd conduct with a child of 14 or 15 years of age (regardless of whether or not force or fear was used), where the defendant was more than 10 years older than the victim, is an alternate felony-misdemeanor punishable by (More) SB 1128 (Alquist) PageR imprisonment in the county jail for up to 1 year or in state prison for "one, two or three years." (Pen. Code 288, subd. (c). (Note: The standard triad for a felony is 16 months, 2 years or 3 years.) Existing law provides that a caretaker of a dependent adult who commits a lewd act with the dependent person by means of force or duress is guilty of a felony punishable by 3, 6 or 8 years in prison. Where force or duress is not used, the perpetrator is guilty of an alternate felony-misdemeanor punishable by imprisonment in the county jail for up to 1 year or in state prison for "one, two or three years." (Pen. Code 288, subds. (b)(2) and (c)(2).) Existing law provides that a person who commits rape, spousal rape or sexual penetration (other than rape) in concert (by two or more perpetrators) shall be punished by imprisonment for 5, 7, or 9 years. It appears that a person who commits a sex crime in concert is necessarily guilty of the underlying crime. This Bill This bill adds undefined lewd conduct ( 288) and rape or sexual penetration in concert ( 264.1) to the target crimes of aggravated kidnapping. Assault with Intent to Commit a Sex Crime or Mayhem during a Residential Burglary (Sec. 5) Existing law provides that "any person who assaults another with the intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1 [rape or sexual penetration in concert with others], 288 [lewd conduct with a child or dependent adult] or 289 [sexual penetration]" is guilty of a felony, punishable by imprisonment for 2, 4 or 6 years. (Pen. Code 220.) Assault with intent to commit a sex (More) SB 1128 (Alquist) PageS crime has been described as an aggravated form of an attempt to commit a sex crime - the aggravation being the assault, which is defined as the intent to commit a violent injury. This bill provides that a person who, during the commission of a residential burglary, commits assault with intent to commit specified sex crimes (rape or sexual penetration in concert, rape, sodomy, oral copulation, lewd conduct and sexual penetration) is guilty of a felony and shall be punished by imprisonment for life with the possibility of parole, regardless of whether or not the defendant intended to commit a sex crime when he entered the residence. Aggravated Sexual Assault of a Child (Sec. 6) Existing law (Pen. Code 269) provides that where the defendant commits a specified sex crime by force or coercion against a victim who is under 14 years of age, and where the defendant is more than 10 years older than the victim, is guilty of aggravated sexual assault of a child and shall be imprisoned for a term of 15 years to life. The crimes included in aggravated sexual assault of a child are: specified sex crimes in concert (two or more perpetrators), sodomy, oral copulation, sexual penetration. This bill reduces the age difference between the perpetrator and the victim in this crime from 10 to 7 years. This bill includes an aggravated sexual assault of a child the specified sex crimes when committed by credible threats to retaliate in the future against the victim or another person. This bill requires consecutive sentencing for each count of conviction if the crimes involved separate victims or the same victim on separate occasions. Continuous Sexual Abuse of a Child as a One-Strike Crime and Elimination of Specified Multiple Punishment (More) SB 1128 (Alquist) PageT Restrictions in Continuous Sexual Abuse Cases (Sec. 8) Existing law provides that "continuous sexual abuse of a child" is committed where a person who has recurring access to a child engages in three or more acts of "substantial sexual conduct" or lewd conduct with a child under the age of 14 over a period of at least three months' time. It is punished by a prison term of 6, 12 or 16 years. (Pen. Code 288.5.) This bill adds continuous sexual abuse of a child as a one-strike crime. Existing law provides that a defendant who is charged with continuous sexual abuse of a child cannot be charged with any "other felony sex offense" against the same victim that occurred during the period of times that the continuous sexual abuse occurred. This bill provides that a defendant who commits sex crimes other than the conduct that constitutes continuous sexual abuse of a child (three acts of substantial sexual conduct or three acts of lewd conduct over at least three months' time), the defendant can be separately prosecuted and punished for the other sex crimes. This change responds to appellate decisions barring prosecution for any sex crimes, other than the continuous sexual abuse of the child, that occurred within the time period when the continuous abuse occurred.<5> Habitual Sexual Offender Law (Sec. 43) Existing law (the habitual sexual offender law) provides that a --------------------------- <5> For example, if the defendant is charged with continuous sexual abuse involving three acts of touching of the child's genitals, and the defendant also committed forced sodomy during that time period, under the current language the defendant could not be punished for sodomy. This bill eliminates that limitation. (More) SB 1128 (Alquist) PageU person previously convicted of specified sex crimes or convicted of kidnapping of a child for lewd conduct who is convicted in the current case of one of those offenses shall be sentenced to a term of 25 years to life on each count of conviction. (Pen. Code 667.71)<6> The prior qualifying crimes are: Rape/spousal rape by force, duress, etc. (Pen. Code 261, subd. (a)(1), 262, subd. (a)(1)) Rape or sexual penetration in concert (Pen. Code 264.1) Lewd conduct with a child under 14 (Pen. Code 288, subds. (a)-(b) Sexual penetration (Pen. Code 289, subd. (a)) Continuous sexual abuse (Pen. Code 288.5) Sodomy by force or duress, etc. (Pen Code 286) Sodomy in concert (Pen. Code 286, subd. (d)) Oral copulation by force, duress, etc. (Pen. Code 288a, subds. (c)-(d)) Kidnapping a child under 14 for lewd conduct by seduction, misrepresentation, etc. (Pen. Code 207, subd. (b)) Kidnapping for sex crimes (former Pen. Code 208, subd. (d)) Aggravated kidnapping for purposes of specified sex crimes (Pen. Code 209) Aggravated sexual abuse of a child (Pen. Code 269) Conviction in other jurisdiction with elements of an offense described above. Existing law , as set out in relevant decisional law, provides that the life term imposed under the habitual sexual offender law shall be imposed in conjunction with a Three Strikes sentence or the one-strike law, although not a combination of --------------------------- <6> The prior crimes subjecting a person to habitual sexual offender penalties constitute prior "strikes" for purposes of the Three Strikes law. The interaction of the two laws, as well as the one-strike law, can produce sentences of well over 100 years. (People v. Murphy (2001) 25 Cal.4th 136 - 160 years to life for two counts of non-forced lewd conduct where defendant had two prior similar convictions.) (More) SB 1128 (Alquist) PageV all three. (People v. Murphy, supra, 25 Cal.4th at pp. 140-141; People v. Snow (2003) 105 Cal.App.4th 271, 281-283.) Existing law prohibits or severely restricts probation for persons convicted of sex crimes. Generally, persons convicted of sex crimes by force, fear or duress cannot receive probation. In numerous cases where probation may be granted (e.g. rape, sodomy or oral copulation by using the authority of public office to arrest or deport another, or assault with intent to commit a sex crime), the court must state on the record the unusual circumstances justifying probation. (Pen. Code 1203.065.) Existing law requires a court to fully evaluate a defendant's application for probation, including holding a hearing to determine if the defendant poses a threat to the victim, in specified sex crime convictions where probation may be granted. (Pen. Code 1203.067.) This bill prohibits a court from granting a defendant probation or exercising its discretion to dismiss a prior conviction allegation in an habitual sexual offender case. This bill provides that habitual sexual offender allegations shall be set out in the "accusatory pleading," rather than the "information," as provided in existing law. This bill expands the oral copulation convictions subject to the habitual sexual offender law by eliminating the requirement that in specified forms of the crime that the crime be accomplished by force, duress or fear of immediate bodily injury. The affected forms of the crime include 1) oral copulation where the victim is under 14 years of age and the perpetrator is more than 10 years older than the victim (Pen. Code 288a(c)(1)); 2) oral copulation through credible threats of future retaliation (Pen. Code 288a(c)(3); and 3) or oral copulation in concert (multiple perpetrators) through (More) SB 1128 (Alquist) PageW threats of future retaliation or where the victim of the crime cannot give consent because of a disability or mental disorder, or oral copulation. This bill expands the sodomy convictions subject to the habitual sexual offender law by eliminating the requirement that in specified forms of the crime that the crime be accomplished by force, duress or fear of immediate bodily injury. The affected forms of the crime include 1) sodomy where the victim is under 14 years of age and the perpetrator is more than 10 years older than the victim (Pen. Code 288a(c)(1)); 2) sodomy through credible threats of future retaliation (Pen. Code 288a(c)(3); and 3) or oral copulation in concert (multiple perpetrators) through threats of future retaliation. This bill adds sexual penetration (other than rape) where the victim is under 14 years of age and the perpetrator is more than 10 years older than the victim (Pen. Code 289, subd. (j)) to the habitual sexual offender law. (Under existing law where a defendant has been convicted of this form of sexual penetration and the victim is under the age of 10 the prosecution can seek a sentence of 25 years to life for a first conviction. Where the victim is over the age of 10, the court shall impose a term of 25 years to life for a second conviction.) (Pen. Code 289, subd. (j)(2).) This bill eliminates sentencing credits that under existing law can reduce a defendant's minimum term by up to 15%. This bill makes technical changes to various statutory references. Violent Felony List - Limits on Prison Sentencing Credits, Definition of Prior Strikes and Other Consequences (Sec. 39) Existing law defines specified crimes as "violent felonies," (More) SB 1128 (Alquist) PageX from which designation numerous consequences flow, including that violent crimes (in addition to "serious felonies") constitute prior "strikes" for purposes of the Three Strikes law and that an inmate serving a sentence for a violent felony can earn no more than 15% sentencing credits to reduce his or her sentence.<7> (Pen. Code 667.5, subd. (c).) Existing law includes a largely anachronistic provision requiring a three-year enhancement for each prior violent felony conviction where a defendant is convicted in the current case of a violent crime. This enhancement has been effectively superseded by the Three Strikes law, which imposes much higher prison terms for defendants convicted of violent offenses. Existing law includes as violent felonies, in addition to very numerous other offenses, violent felony and sodomy accomplished by force or coercion. This bill expands the violent felony list to include sodomy, or oral copulation or sexual penetration (other than rape) in which the victim is under that age of 14 and the perpetrator is more than 10 years older than the victim. This bill expands the violent felony list to specifically include in-concert sodomy or oral copulation accomplished by force or coercion (although any form of forced or coerced sodomy or oral copulation is included in the existing violent felony list), or in-concert sodomy or oral copulation by a credible threat to retaliate. This bill includes as a violent felony any sodomy or oral copulation or sexual penetration (other than rape) accomplished through a credible threat to retaliate against the victim or another person in the future. This bill includes as a violent felony oral copulation in --------------------------- <7> Defendants serving a life term (third strike) Three Strikes sentence can earn no sentencing credits. (More) SB 1128 (Alquist) PageY concert where the victim is mentally disordered, developmentally disabled or physically disabled. This bill makes a technical change to the reference to lewd or lascivious conduct with a child (Pen. Code 288.) This bill makes a technical change to the reference in the violent felony list to sex crimes in concert. Enhancement for Administering Controlled Substance in the Commission of a Felony - Greater Punishment in Sex Crimes (Sec. 56) Existing law provides that where the perpetrator of a felony administers a controlled substance by force or threat of immediate injury, the defendant's prison sentence shall be enhanced by three years. (Penal Code 12022.75.) This bill provides that where the defendant administers a controlled substance with intent to commit a specified sex offense, the defendant shall receive a sentence enhancement of five years. To establish this enhancement, the prosecution need not show that force or threat was used in the administration of the controlled substance. Penal Code Section 667.6 - Special Consecutive Sentencing Provisions in Sex Crimes; and (Largely Superseded) 5-Year or 10-Year Sentencing Enhancements (Secs. 40; 41; 50; 51) Existing law provides that the court can or must impose fully consecutive terms for each count of conviction (separate sex crime) in a sex crimes prosecution involving specified offenses. (Pen. Code 667.6, subds. (c) and (d).) Where the crime involved multiple victims or where the crimes were committed on separate occasions, the court must impose consecutive terms. Crimes occurred on separate occasions where the defendant had an opportunity to reflect between two crimes. (More) SB 1128 (Alquist) PageZ Existing law provides that where a defendant is convicted of a specified sex offense and has been previously convicted of such an offense, the defendant shall receive a sentence enhancement of five years. Where the defendant has been previously convicted of two or more such offense, the sentence enhancement shall be 10 years. (Penal Code 667.51.) This bill adds various forms of sex crimes, such as commission of sodomy, oral copulation or sexual penetration other than rape by threats to retaliate in the future, to consecutive sentencing provisions of Section 667.6, subdivisions (c) and (d). Existing law prohibits probation where the defendant is convicted of specified crimes - murder, robbery, kidnapping, residential burglary, torture, rape, assault to commit a sex crime and others - in which the defendant used a firearm. Further, where the defendant was previously convicted of such a crime, and was convicted in the current case of a crime in which the defendant used a firearm, probation is prohibited. (Pen. Code 1203.06.) Section 1203.06 also prohibits probation for a person convicted of aggravated arson. This bill adds numerous sex crimes - sodomy, oral copulation, sexual penetration (other than rape), aggravated sexual assault of a child - to the firearm-use probation prohibition in Section 1203.06. This bill prohibits the court from relying on Section 1385 so as to dismiss an allegation that would bring the defendant within the probation bar in Section 1203.06, the provision barring probation for the use of a firearm during the commission of specified felonies. (Penal Code Section 1385 authorizes a court to dismiss any action, or any portion thereof, in the interests of justice, unless the Legislature has clearly prohibited the court from exercising such discretion.) This bill strikes a provision that does not prohibit adjournment (More) SB 1128 (Alquist) PageA of criminal proceedings pursuant to Welfare and Institutions Code sections concerning commitments to state mental hospitals. (It appears that the provision in existing Section 1203.06 applied to the former Mentally Disordered Sexual Offenders' law, under which persons were committed for mental health treatment rather than being sent to prison.) Existing law prohibits probation for defendants convicted of specified sex crimes committed by force or coercion. (Pen. Code 1203.065, subd. (a).) Section 1203.065 also prohibits probation in specified pimping and pandering offenses. This bill adds specified sex crimes committed through credible threats of future retaliation (rape, sodomy, oral copulation or sexual penetration other than rape) and specified crimes committed in concert (sodomy or oral copulation) to the probation prohibitions of Section 1203.065. This bill adds aggravated sexual assault of a child to the probation prohibition provisions in Section 1203.065. Probation Prohibitions (Secs. 50; 52) Existing law prohibits probation where the defendant is convicted of specified crimes - murder, robbery, kidnapping, residential burglary, torture, rape, assault to commit a sex crime and others - in which the defendant used a firearm. Further, where the defendant was previously convicted of such a crime, and was convicted in the current case of a crime in which the defendant used a firearm, probation is prohibited. (Pen. Code 1203.06.) Section 1203.06 also prohibits probation for a person convicted of aggravated arson. This bill adds numerous sex crimes - sodomy, oral copulation, sexual penetration (other than rape), aggravated sexual assault of a child - to the firearm-use probation prohibition in Section 1203.06. (More) SB 1128 (Alquist) PageB This bill prohibits the court from relying on Section 1385 so as to dismiss an allegation that would bring the defendant within the probation bar in Section 1203.06, the provision barring probation for the use of a firearm during the commission of specified felonies.<8> This bill strikes a provision that does not prohibit adjournment of criminal proceedings pursuant to Welfare and Institutions Code sections concerning commitments to state mental hospitals.<9> Existing law prohibits probation for defendants convicted of specified sex crimes committed by force or coercion. (Pen. Code 1203.065, subd. (a).) Section 1203.065 also prohibits probation in specified pimping and pandering offenses. This bill adds specified sex crimes committed through credible threats of future retaliation (rape, sodomy, oral copulation or sexual penetration other than rape) and specified crimes committed in concert (sodomy or oral copulation) to the probation prohibitions of Section 1203.065.) This bill adds aggravated sexual assault of a child to the probation prohibition provisions in Section 1203.065. Existing law prohibits probation for persons convicted of specified crimes in which the defendant, intending to inflict great bodily injury, did in fact inflict such injury. This bill adds commission of a lewd act with a child under the --------------------------- <8> Penal Code Section 1385 authorizes a court to dismiss any action, or any portion thereof, in the interests of justice, unless the Legislature has clearly prohibited the court from exercising such discretion. <9> It appears that the provision in existing Section 1203.06 applied to the former Mentally Disordered Sexual Offenders' law, under which persons were committed for mental health treatment rather than being sent to prison. (More) SB 1128 (Alquist) PageC age of 14, lewd acts with a person who is 14 or 15 years of age, or lewd acts with a dependent adult to the probation prohibition provisions in Section 1203.075. This bill adds continuous sexual abuse of a child to the probation prohibition provisions in Section 1203.075. This bill makes additional related and technical changes to Section 1203.075. Qualifying Prior Convictions under the Three Strikes Law (Secs. 37 and 45) Existing law provides that a criminal defendant who is convicted of any felony, and who has been convicted of two or more "serious" (Pen. Code 1192.7, subd. (c)) or "violent" (Pen. Code 667.5, subd. (c)) felonies shall be imprisoned for a term of at least 25 years to life. Where the defendant has a single prior serious or violent felony conviction, the defendant's term in the current case is doubled. Existing law provides that qualifying prior serious and violent convictions (prior strikes) are those crimes so defined as of March 2000 - the date of the enactment of Proposition 21 of the March, 2000 Primary Election. (Pen. Code 667, subds. (b)-(i), 667.1, 11170.12 and 1170.125.) This bill defines qualifying prior strikes as those offenses defined as serious or violent as of the effective date of this bill. Prohibition on Traditional Judicial Discretion to Dismiss an Action or any Part Thereof in this Bill Existing law grants trial courts, as an inherent judicial function, the authority to dismiss a criminal action or any part thereof in the interests of justice. (Pen. Code 1385.) (More) SB 1128 (Alquist) PageD Existing decisional law provides that court discretion under Section 1385 can only be prohibited or limited by clear and explicit legislative or initiative language. (People v. Superior Court (1996) 13 Cal.4th 497.) In Romero, the Supreme Court held that the Three Strikes law did not clearly prohibit judicial discretion to dismiss a prior qualifying conviction.) Existing law does include statutes, such as the 10-20-life firearm enhancements - that clearly and explicitly prohibit Section 1385 discretion. This bill prohibits a court from exercising discretion under Section 1385 where the defendant is convicted under the habitual sexual offender law and explicitly prohibits the exercise of discretion under Section 1385 in other circumstances where discretion is currently limited or barred, such as the one-strike law and the ban on probation where the defendant used a gun. SEX OFFENDER REGISTRATION (Sec. 11) Current law generally requires people who have been convicted of specified sex offenses to register at least annually with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing, in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, for the rest of his or her life while residing in California, or while attending school or working in California, as specified. (Penal Code 290.) This bill would require the registering agency to give the registrant a copy of the completed Department of Justice form (More) SB 1128 (Alquist) PageE each time the person registers or reregisters, including at the annual update. This bill would require that on or before January 1, 2010, the Department of Justice shall renovate the VCIN to do the following: (1)Correct all software deficiencies affecting data integrity and include designated data fields for all mandated sex offender data. (2)Consolidate and simplify program logic, thereby increasing system performance and reducing system maintenance costs. (3)Provide all necessary data storage, processing, and search capabilities. (4)Provide law enforcement agencies with full Internet access to all sex offender data and photos. (5)Incorporate a flexible design structure to readily meet future demands for enhanced system functionality, including public Internet access to sex offender information pursuant to Section 290.46. MEGAN'S LAW Under current law, the Department of Justice ("DOJ") is required to make information about registered sex offenders available to the public via an Internet Web site, as specified. (Penal Code 290.46.) DOJ is required to include on this Web site a registrant's name and known aliases, a photograph, a physical description, including gender and race, date of birth, criminal history, any other information that the Department of Justice deems relevant unless expressly excluded under the statute. (Id.) This bill would require the Web site to display the risk assessment tier level for each posted registrant who has been assessed by the STATIC-99. This bill would provide that if no risk assessment has been (More) SB 1128 (Alquist) PageF done, the Web site shall state, "Risk Level-Not Yet Assessed." This bill would require specified entities which perform risk assessments to provide DOJ with risk assessment information about registrants, as specified. This bill would require that the Web site display the date of conviction and the date of release from incarceration or commitment for each posted registrant. This bill additionally would require that the Web site also post, in a separate section from those listing current registered sex offenders, the names and reported state of destination, if any, of former registrants who have been deported or moved out of state. This bill would require that the Web site display any prior adjudication as a sexually violent predator. This bill adds crimes to the Internet Web site requirements which would be enacted by this bill, as specified. Current law provides a mechanism for certain registered sex offenders to apply to DOJ to be excluded from the Megan's Law Web site. This potential exclusion includes Section 647.6 (child annoyance,) provided the offense is a misdemeanor. This bill would revise the misdemeanor child annoyance provision to apply only if the person has a risk assessment level of low or moderate-low. This bill additionally would require DOJ to periodically review the list of persons excluded and, if DOJ determines that a person who was granted an exclusion under a former version of this subdivision would not qualify for an exclusion under the current version of this subdivision, the department would be required to rescind the exclusion, make a reasonable effort to provide notification to the person, and, no sooner than 30 days after notification is attempted, make information about the (More) SB 1128 (Alquist) PageG offender available to the public on the Internet Web site. This bill would require the Attorney General, in collaboration with local law enforcement and others knowledgeable about sex offenders, to develop strategies to assist members of the public in understanding and using publicly-available information about registered sex offenders to further public safety, as specified. Preservation of Court Records Concerning Registered Sex Offenders (Secs. 3 and 58) Current law generally authorizes trial court clerks to destroy court records after certain periods of time depending upon the nature of the record, as specified. (Government Code 68152.) Criminal records must be retained a specified period depending upon the nature of the conviction. (Government Code 68152(e); (f).) This bill would require that records relating to a person required to register with law enforcement as a sex offender, as specified, be retained for the life of the person. This bill would enact a new law providing that a state or local law enforcement agency shall not destroy any records relating to a person who is required to register as a sex offender for as long as the person is living. FINES; APPLIED TO SAFE TEAMS (Sec. 19) Existing law provides that every person convicted of any of a list of specified sex offenses which require lifetime registration shall, in addition to any imprisonment, fine, or both, be punished by an additional fine of $200 upon a first conviction, and $300 upon a subsequent conviction, as specified, including a finding of ability to pay by the courts; that money shall be deposited and used by counties with a DNA testing laboratory for that lab; a percentage of money from those fines for second or subsequent convictions shall be transferred and (More) SB 1128 (Alquist) PageH used by the Department of Justice for the Sexual Habitual Offender program - monitoring, apprehending, and prosecuting; and a percentage from all of the fines shall be transferred and used by the Department of Justice for DNA testing for law enforcement purposes; and those funds shall be used for other purposes, as specified. (Penal Code 290.3.) This bill increases the existing fines to be imposed on those sex offenders from $200 to $300 for a first offense and from $300 to $500 for a second offense with an amount equal to $100 for every fine imposed in excess of $100 to be transferred to CDCR to fund SAFE Teams, as specified. Title; Legislative Findings and Declarations This bill would enact the "Sex Offender Punishment, Control, and Containment Act of 2006," and makes specified legislative findings and declarations concerning sex offenders. COMMENTS 1. Stated Need for This Bill The author states: The purpose of the bill is to provide a comprehensive, proactive approach to preventing the victimization of Californians by sex offenders. Under current law, California's tactical methods and infrastructure are insufficient for law enforcement to appropriately assess, convict and monitor sex offenders. SB 1128 is the product of months of discussion with, and input from, experts in the area. It incorporates a broad spectrum of approaches recognized by law enforcement and avoids key flaws (More) SB 1128 (Alquist) PageI that have marred other bills on this subject, such as residency requirements that dump offenders into rural communities or provisions that inadvertently tie the hands of police in performing Internet sting operations. SB 1128, the Sex Offender Punishment, Control and Containment Act of 2006: Increases the prison term for child rape to 25 years to life; Expands the Megan's Law database; Toughens penalties for child pornography; Toughens penalties for Internet predators; Ensures police can use on-line decoys to catch Internet predators; Discourages prosecutors from offering plea bargains in sex offense cases; Gives state and local officials a new system to monitor dangerous parolees; Increases parole time for violent sexual offenses; Keeps sex offenders away from schools, parks, and other places where vulnerable populations, including the elderly and disabled, congregate. By taking this comprehensive approach SB 1128 will make all of California's communities safer from all sexual predators, not just some. 2. What This Bill Does This is a wide-ranging measure which amends or enacts numerous statutory provisions concerning sex crimes pertaining to penalties, offender risk assessments, prevention, supervision and civil commitment. Broadly, the bill contains provisions in the following areas: Child luring; Sex offender loitering around school grounds and other places; Child pornography; (More) SB 1128 (Alquist) PageJ Child safety programs; SAFE teams; Recidivism risk assessments for registered sex offenders; Enhanced parole and probation provisions for sex offenders; Extended parole periods for all violent sex offenses; Prosecution of sex offenses and plea bargains; Sexually violent predators; Sentencing provisions for sex offenses; Updated Megan's Law database and increased information on the Megan's Law Web site; and Sex offender registration. As set forth in detail above and discussed below, this bill contains many of the largely technical sentencing provisions contained in SB 588 (Runner), heard by the Committee earlier this year. This bill differs from the Runner bill (and the Runner initiative recently submitted to the Secretary of State for signature verification) in the following major ways: This bill does not contain the 2000 foot school and park residency ban on registered sex offenders contained in SB 588; This bill proposes a child luring crime which, unlike SB 588, includes within its scope police stings where non-minors are used; This bill proposes indeterminate sentencing for sexually violent predators who have been civilly committed with minimum constitutional guarantees not included in SB 588; This bill closes the parole tolling loophole that currently exists in the SVP law in a manner more comprehensive than SB 588; This bill proposes wide-ranging reforms to several child pornography statutes, including a sentencing scheme for child pornography broader and with greater sentence increases than those proposed by SB 588; and This bill does not propose GPS for all felony registered (More) SB 1128 (Alquist) PageK sex offenders, as does SB 588. This bill additionally contains provisions not previously considered by the Legislature, such as a statewide system for performing recidivism risk assessments on all registered sex offenders. 3. The Sexually Violent Predator ("SVP") Law: Reflections and Lessons from the Washington State SVP Program History - Washington State had the First SVP Law in the Country Washington State enacted the first sexually violent predator law in the country in 1990. As a general rule, these laws allow civil confinement for treatment of a mental disorder for a person who was first punished for a sex crime. Over the last 70 years, however, many states have implemented laws to commit sex crime perpetrators to mental hospitals instead of prisons. California's law - the Mentally Disordered Sex Offender (MDSO) law - has been repealed, but some persons are still being held in civil confinement for successive, determinate two-year terms. Washington has had a similar law. Arguably, California and Washington State have a similar mix of rural and urban areas. California and Washington are both in the Federal 9th Circuit. Thus, the same federal appellate courts hear SVP cases from both states. Important federal rulings on the Washington law may be instructive to California lawmakers. California SVP Law was Drawn in Significant Part from Washington's Law - Washington has No Determinately Committed Dangerous, Mentally Disordered Offenders Because Washington has had an SVP law longer than any other state, we can perhaps learn from the Washington experience. (More) SB 1128 (Alquist) PageL Further, much of the California law was drawn from the Washington law and adapted to practices in this state. For example, Washington unlike California, does not have a mentally disordered offender law. Mentally disordered prison inmates who may be violently dangerous are subject to closer monitoring in the community than other parolees. However, parolees who may be in need of inpatient mental health treatment are not committed to a state program, while such parolees in California are committed to a state program while on parole. Dangerous mentally disordered California parolees can be held in civil confinement in one-year increments after parole. In Washington, dangerous parolees who need inpatient care are referred to county authorities for standard civil commitment. The equivalent program in California is the LPS commitment process. Because Washington does not have an MDO program where parolees are committed under determinate terms, Washington does not have the same equal protection concerns (the requirement that similarly situated persons be treated in an equivalent manner under the law) arising from indeterminate SVP commitments. Washington has Time Limits (Extended with Good Cause) for Bringing SVP Cases to Trial Washington State, unlike California, requires that an SVP trial be held within 45 days of the finding of probable cause that a person may be an SVP. The trial can be continued at the request of either side upon a showing of good cause. There are no time limits on bringing SVP cases to trial in California. SHOULD CALIFORNIA, AS DOES WASHINGTON STATE, REQUIRE AN SVP TRIAL TO BE HELD WITHIN A CERTAIN AMOUNT OF TIME AFTER A FINDING OF PROBABLE CAUSE THAT A PERSON IS AN SVP? The Washington Attorney General Handles Virtually All SVP Cases, while Local District Attorneys Handle SVP Cases in California In Washington, the Attorney General prosecutes SVP cases in 38 (More) SB 1128 (Alquist) PageM of the 39 counties. SVP cases can thereby be coordinated and streamlined. The Washington SVP prosecutors know the experts and issues in this field very well. Attorneys in the office report that they use discretion in the filing of cases so as to avoid wasting resources. In California, each county district attorney handles SVP cases arising from that county. Different policies and standards can be followed in each county. Prosecutors and defense attorneys in Los Angeles can develop deep experience and skill in SVP cases, while those in smaller counties may have little experience or skill in these matters. Because of the constitutional right to a speedy trial in criminal cases, district attorneys are very likely to place a priority on felony trials over SVP cases. SVP cases are often delayed for years, producing absurd results. (An SVP defendant facing a recommitment trial for the period from, say, 2004-2006, may not have the case heard until 2007.) SHOULD PROSECUTION OF SVP CASES BE HANDLED BY A SINGLE STATE OFFICE (SUCH AS THE ATTORNEY GENERAL), TO DEVELOP AND MAINTAIN COORDINATION, EXPERTISE AND CONSISTENCY IN SVP CASES, AS HAS BEEN THE CASE IN WASHINGTON? Washington Treatment and Conditional Release (Less Restrictive Alternative) Programs - Federal Court Contempt Fines and Resulting Compliance with Federal Orders; State Operated Conditional Release Facilities Washington State has conditionally released (released to a "less restrictive alternative" or LRA) 13 people. These persons have been released to family members or have been placed in special facilities intended to integrate the SVP patient back into society. The special facilities have been problematic for Washington. Initially the only LRA facility was on McNeil Island, the home of the SVP inpatient (Special Commitment) center. Another facility will soon open in Seattle. (More) SB 1128 (Alquist) PageN The federal courts did not find that the statutory terms of the treatment program, including the LRA provisions, violated the Constitution. The federal courts did find that the program, as implemented, failed to offer adequate treatment. The program has operated under a federal court injunction for years. Approximately $14 million in contempt of court fines have accrued while the state works to provide adequate treatment, including constructing or opening transitional living facilities in the community. The state will not have to pay the fines if the court is satisfied with the progress made in improving treatment. According to the Washington SCC Web site: "The court also found that the lack of less restrictive alternative housing options was a significant issue and ordered the state to '[make] arrangements?for the community transition of qualified residents, under supervision, when they are ready for a less restrictive alternative.'" Arguably, California should be careful to provide a genuine opportunity for SVP patients to obtain meaningful treatment and to be integrated back into the community through conditional release. Because DMH has had great difficulty finding housing for SVP patients, perhaps California should consider the use of state-run transitional facilities. Care must be taken in taking these steps, as the federal courts may be less understanding of treatment inadequacies in California after addressing treatment standards issues over the past 12 years in Washington. SHOULD CALIFORNIA OPEN STATE-OPERATED TRANSITIONAL FACILITIES TO HOUSE CONDITIONALLY RELEASED SVP PATIENTS AND HELP INTERGRATE THEM BACK INTO SOCIETY? Qualifying Convictions - No Washington State SVP has been Committed who had a Single Prior Offense Numerous bills in recent years, and the proposed Jessica's Law initiative, have proposed that the SVP law be amended to allow commitment of a person who has been convicted of a single prior sex offense. Washington State allows commitment with only a (More) SB 1128 (Alquist) PageO single offense. However, officials with the Washington program and in the Attorney General's SVP prosecution office are not aware of any case in which a person was committed who had only a single prior conviction. As noted above, Washington prosecutors exercise discretion in bringing SVP trials. The persons who have been evaluated in Washington as SVPs have generally had long histories of sexual offending. It may be a waste of scarce resources to change California law so as to allow commitment of persons to the SVP program who have only a single prior conviction. If such a person has a relatively high risk of sexual offending, as measured by assessment tools, it is suggested that close monitoring in the community be done. Similar issues can be raised about proposals to add more juvenile adjudications to the list of qualifying SVP crimes. Experts in the field have concluded that juvenile sex offenders are different from adult sex offenders. Allowing an adult SVP commitment to be based on juvenile priors would likely produce very few commitments from a large increase in the number of people screened. It must be noted that sexually dangerous persons who are committed to the Youth Authority can be kept in civil confinement under Section 1800 of the Welfare and Institutions Code now. Sexually dangerous persons who would otherwise be released from Youth Authority control are committed, similar to SVPs and MDOs, for successive two-year terms. Newly Enacted Alternatives to SVP Commitment in Washington - All Sex Offenders Convicted of Contact Offenses are Indeterminately Sentenced, with Varying Minimum Terms According to the Washington Attorney General's office, Washington has recently passed a law requiring indeterminate prison terms for defendants convicted of all contact sex offenses. The minimum term in prison is determined from a grid, with one axis being the seriousness of the offense and the other being the defendant's record. Sex offenders are offered (More) SB 1128 (Alquist) PageP treatment in prison. This change in law will force Washington to substantially expand its parole board system. A similar change in California could be very problematic, as parole hearings are routinely delayed for months or years in California. It appears that the California courts may soon intervene to force more expedited handling of parole hearings. SHOULD CALIFORNIA CONSIDER MAKING ALL SEX CRIMES IN CALIFORNIA SUBJECT TO INDETERMINATE TERMS? The indeterminate commitment provisions in this bill are drawn from the Washington law. Unlike some other proposals made in California for indeterminate commitments, the Washington law appears to comply with constitutional due process requirements by giving SVP patients a reasonably full, annual opportunity for court review of the commitment. The due process issue is discussed below. 4. Civil Commitment Schemes Based on Dangerousness and Mental Disorders - Including SVP Laws - Must Provide Due Process, Including Reasonable Access to the Courts and Court Review of Status In 2005, the California Supreme Court considered the civil commitment scheme (Welf. & Inst. Code 1800 et seq.) for mentally disordered and dangerous persons who would otherwise be released from Youth Authority parole. In this case, In re Howard N. (2005) 35 Cal.4th 117, the Court discussed the need for due process in civil commitment schemes generally. Commitment under Section 1800 is similar in many respects to commitment under the SVP law. Howard N. includes important discussions about the SVP Act. The court stated: The [United States Supreme] court has repeatedly recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protectionNevertheless, [s]tates have in certain narrow circumstances provided for the (More) SB 1128 (Alquist) PageQ forcible civil detainment of people who are unable to control their behavior andpose a danger to [others]." The high court has "consistently upheld such involuntary commitmentprovided the confinement takes place pursuant to proper procedures and evidentiary standards." .[T]he high court has"sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a 'mental illness' or'abnormality. [Citations.] Theserequirements serve to limit involuntary civil confinement to those who suffer from a volitional control." We employed a similar approachin Hofferber. In that case, we concluded that "the state may confine incompetent criminal defendants, on grounds that they remain violently dangerous We observed, however, that the relevant statutes did "not expressly require a showing of continuing dangerousness," but appeared "to permit indefinite maintenance of [Lanterman-Petris-Short Act] conservatorships solely because the incompetence continues and the violent felony charges have not been dismissed." Therefore, in order to preserve the constitutionality of the statutory scheme, we construed it to require current dangerousness. . (Id, at pp. 127-129, 134-135; citations omitted; bold type added, italics in original.) The court in Howard emphasized that the state must demonstrate the current dangerousness of a civilly committed person. That requirement is met in the many California commitment statutes by recommitment trials or hearings after set period of time. (Id, at p. 131, 133-135.) It seems clear that continuing dangerousness (More) SB 1128 (Alquist) PageR must be demonstrated on some regular basis under an indeterminate commitment, even where the law does not require the entire original commitment process to be repeated as though the person had never been committed. The ruling of the court in In re Howard N. can clearly be read as requiring access to the courts and a process for renewing commitments that provide due process. That is, a scheme where a person is indeterminately committed and under which the person cannot obtain meaningful review the commitment, or where the person cannot challenge continuing commitment through a showing of changed circumstances, would be subject to serious due process attacks. The indeterminate scheme in this bill is modeled on the Washington State indeterminate commitment process. Under that scheme, as under the equivalent terms of this bill, an SVP patient must be evaluated every year. The patient can file a petition for conditional or unconditional release with or without the support of the state treatment program authorities. If the state fails to present a prima facie case that the person must be confined because he remains sexually dangerous because of a mental disorder, or if the patient establishes probable cause that those conditions no longer exist, a trial must be held. At the trial, the state must prove beyond a reasonable doubt that the person must continue to be confined, or the state must prove that the person cannot be safely released in the community under supervised, conditional release. Further, because it appears that the state has a continuing responsibility to justify commitment, unless the person waives the right to an annual non-appearance show-cause hearing the court shall review the issue of whether a prima facie case exists that continuing confinement is necessary. It appears that the so-called Jessica's Law bills and initiative only provide that an SVP patient can obtain (More) SB 1128 (Alquist) PageS certain judicial review with the approval of the director of DMH. Should that approach be enacted, it would be subject to serious due process attack. Under the Jessica's Law commitment review scheme, a patient can file a petition without the approval of DMH. However, it appears that the patient can only seek conditional release without the approval of DMH. Further, the court can deny the patient's petition without any hearing if the court finds that the petition is frivolous. It is not clear that the court would have to make any particular finding in denying the petition without a hearing. Legislators should be aware that in prior years, a number of urgency bills were introduced and enacted when courts found errors or problems with the SVP law. For example, the law originally did not provide for holding inmates who had not been evaluated as possible SVPs by the time they would have been released from prison on parole. Had the Legislature not acted so as to allow a 45-day hold to complete evaluations, prospective SVPs would have been released on parole and not subject to commitment. If an indeterminate scheme is enacted that does not provide due process, the entire program could be found unconstitutional. Under such circumstances, the Legislature may not be able to cure due process errors before release of SVP patients from the program. 5. The Elephant in the Room - Equal Protection Issues Arising from Indeterminate SVP Commitments when Similar Commitment Schemes (e.g., Mentally Disordered Offender Law) use Determinate Terms This bill includes a provision that a commitment to the SVP program would be for an indeterminate period of years. Other states have indeterminate commitment terms for SVP patients. However, Washington State, which indeterminately commits SVP patients, has indeterminate terms for other forensic (initially arising from criminal matters) mental health commitments. (More) SB 1128 (Alquist) PageT California's other forensic mental health commitments are for set periods of times. Thus, an indeterminate term for California SVPs would meet a serious challenge based on equal protection of the law, as SVPs would not be treated similarly under the law to similarly situated persons like, for example, Mentally Disordered Offenders. California appellate courts have held that persons involuntarily committed under the SVP law are similarly situated to persons involuntarily committed as Mentally Disordered Offenders and "other persons involuntarily committed." (People v. Buffington (1999) 74 Cal.App.4th 1149, 1156.) A recent example of this analysis involves the issue of involuntary administration of antipsychotic medication. The court in In re Calhoun (2003) ) 121 Cal.App.4th 1315, 1353-1354 agreed that SVP defendants and patients are similarly situated to Mentally Disordered Offenders (MDO), who are also committed for psychiatric treatment when they would otherwise be released from prison on parole. The court in Calhoun noted that involuntary civil commitment affects or limits the fundamental interest of liberty. In particular, the court in Calhoun held that SVP patients, just as MDO patients, have the right to refuse involuntary administration of antipsychotic medication. The court in Calhoun explained that where similarly situated persons are treated differently in regard to a fundamental interest, the state action will be reviewed with strict scrutiny: If a classification scheme is subject to strict scrutiny because it affects a fundamental interest, the presumption of constitutionality that would otherwise pertain falls away, the burden shifts, and the state must both establish a compelling interest that justifies the law and also demonstrate that the distinctions drawn by the law are necessary to (More) SB 1128 (Alquist) PageU further that state interest. [Citations.] Respondent has failed to demonstrate a compelling state interest that justifies the distinction between MDOs and SVPs concerning the right to refuse antipsychotic medication. As discussed above, the distinction cannot be justified merely because, unlike an MDO, an SVP's mental disorder must make it likely that he "will engage in sexually violent [predatory] criminal behavior." [Citations.] (In re Calhoun, supra, 121 Cal.App.4th at pp. 1353-1354.) MDO patients are generally committed for a period of one year. A person found not guilty by reason of insanity (NGI) is committed for treatment for a period no longer than the maximum time he or she could be sentenced for the underlying crime. If the NGI defendant remains a danger to others because of a mental disorder at the end of the initial commitment, he or she can be committed for an additional period of two years. This bill would require a substantially longer period of commitment for SVP patients than similarly situated civilly committed "forensic" (criminal justice) mental patients. 6. Should the Legislature Make Mentally Disordered Offender Commitments and Other Forensic Civil Commitments Indeterminate so as to Avoid or Minimize Equal Protection Problems The previous comment discusses equal protection issues that will arise if SVP patients are committed to indeterminate terms while other forensic patients are committed to determinate terms. A "forensic commitment" is one that involves a person whose mental disorder or illness is linked to criminal behavior. For example, a mentally disordered offender was convicted of a violent crime which was caused or exacerbated by the mental disorder and who remains dangerous without treatment. As noted above, (More) SB 1128 (Alquist) PageV California courts have found that MDOs and SVPs are similarly situated and must be treated equally under the law for certain purposes. It cannot be predicted whether or not the California or United States Supreme Court would rule that equal protection bars different forms of commitment (indeterminate vs. determinate) for SVPs than MDOs and others subject to forensic civil commitments. Equal protection litigation on this issue will be very complex, protracted and expensive. In such litigation, the state is most likely to argue that the treatment for SVPs and MDOs and others subject to forensic civil commitment is necessarily very different. In particular, MDO patients often suffer from mental illnesses such as schizophrenia and paranoid-schizophrenia. These illnesses may be managed or controlled through the use of antipsychotic medication. Properly medicated MDO patients may keep their maladies in remission. SVPs are often diagnosed with mental disorders that cannot be managed or controlled through medication. Such an argument may be undercut by the fact that a person convicted of a violent sex offense can be committed as an MDO. Similar arguments can be made based on the civil commitments under Welfare and Institutions Code Section 1800, for dangerous and mentally disordered persons who would otherwise be released from Youth Authority control. Such persons are held for two-year commitments, just as are SVPs under existing law. Section 1800 commitments often involve persons who have committed sexual offenses. Chaos could result if the courts hold that an indeterminate commitment for SVPs alone violates equal protection. The courts could order the release of all indeterminately committed SVPs. The courts could order such release, but grant the Legislature some time to cure the constitutional infirmity. (More) SB 1128 (Alquist) PageW Should the courts invalidate the indeterminate commitment process in this bill, none of the outcomes would be welcome. One could argue that the Legislature should move to make the similar commitment schemes for forensic civil commitments consistent. IF THE INDETERMINATE COMMITMENT SCHEME FOR SVP PATIENTS IS ENACTED, SHOULD THE OTHER FORENSIC COMMITMENT SCHEMES BE MADE INDETERMINATE, THEREBY AVOIDING THE CHAOS THAT COULD ENSUE IF INDETERMINATE SVP COMMITMENTS ARE FOUND TO VIOLATE EQUAL PROTECTION? Equal protection concerns beg the question of whether the Legislature should consider revising the other forensic civil commitment provisions. If the indeterminate SVP commitment provision in this bill is enacted, the SVP program would be the only forensic civil commitment program in California under which persons are indeterminately committed. 7. SVP Parole Issues; Tolling This bill sets out a comprehensive parole tolling provision for any person subject to evaluation and commitment as an SVP. Under this bill parole is continuously tolled through the initial evaluation process, the probable cause hearing and the period of commitment to DMH for treatment. The only time that parole runs for a person who is evaluated or committed as an SVP is the time that the person is under supervised conditional release in the community. The purpose of the parole tolling provisions in the bill is to insure that sex offenders will not be released into the community having avoided parole supervision. Under existing (More) SB 1128 (Alquist) PageX law, a person subject to evaluation and commitment as an SVP will likely not be under parole supervision when he is released into the community. Recent media reports and prior analyses published by this Committee have noted that dozens of persons have been released without parole supervision after they prevailed in an SVP trial, were released after the state dropped the case, or were not found to be SVPs by expert evaluators. The Jessica's Law initiative and bills - AB 231 (Runner) and SB 588 (Runner) - appear to only toll parole while a person is actually in the SVP program. Such a tolling provision would not affect the cases that have drawn the greatest media scrutiny - sex offenders who were evaluated as SVPs but were not committed to the SVP program. Because SVP proceedings following a finding of probable cause typically take many years, persons who are not committed through the process generally are not on parole at the conclusion of court proceedings. Even if a person was committed to the program, their parole period has generally run during the court process. Tolling parole during the treatment program, as would occur under the Jessica's Law provisions, would accomplish little or nothing if the period of parole has run prior to commitment. Where SVPs are released from the program unconditionally, they generally are subject to no supervision or restrictions beyond sex offender registration. In summary, this bill would ensure that sex offenders who are either evaluated or committed as SVPs will be monitored and supervised on parole in the community. It must be noted, however, that tolling parole for SVPs, while not tolling parole for mentally disordered offenders and other offenders committed because of mental disorders, likely will be strongly challenged on equal protection grounds. Further, because of the ban on "ex-post facto" punishment, tolling parole will likely only apply to defendants if the crime for which they are on parole was committed after the effective date of this (More) SB 1128 (Alquist) PageY bill. These constitutional issues are discussed below. 8. Data on SVP Program (through December 2005) - Only 8% of Inmates with Qualifying Prior Commitments are Committed to the SVP Program The following chart summarizes the data concerning inmates who have passed through the SVP screening, probable cause and commitment process from the inception of the program through December 2005: ----------------------------------------------------------------- |Total screened by CDCR (with |6,368 | |qualifying prior convictions) | | |--------------------------------+--------------------------------| |Eliminated after DMH individual |2,910 | |record review | | |--------------------------------+--------------------------------| |Clinical evaluation that inmate |2,069 | |is not SVP | | |--------------------------------+--------------------------------| |Clinical evaluation that inmate |1,307 | |may be SVP | | |--------------------------------+--------------------------------| |Cases rejected by DA | 184 | |--------------------------------+--------------------------------| |Petition for commitment filed | 1,073 | |by DA | | |--------------------------------+--------------------------------| |Judge rejects (no probable | 158 | |cause inmate is SVP) | | |--------------------------------+--------------------------------| |Judge finds probable cause | 846 | |person is SVP | | |--------------------------------+--------------------------------| |Defendant won trial | 132 | |--------------------------------+--------------------------------| (More) SB 1128 (Alquist) PageZ |Trials pending | 174 | |--------------------------------+--------------------------------| |Actually committed as SVPs | | | |539 | ----------------------------------------------------------------- Even under current standards, expert evaluators have only found about 1/3 of inmates with qualifying prior convictions have mental disorders that make it likely they will engage in future predatory sex acts. Through the process of petitions, probable cause hearings and trials only about 8% of inmates with prior qualifying convictions are actually committed to the SVP program. If the pool of inmates subject to evaluation is greatly expanded, with substantial attendant expense, very few additional commitments to the SVP program will result. The percentage of persons committed to the program, as a portion of the total number screened, will likely fall well below the current rate of 8%. 9. Widely Accepted Diagnostic Tool for Predicting Recidivism - STATIC-99 The "STATIC-99," which this bill proposes to employ as a tool for assessing the recidivism risk of registered sex offenders, is a widely accepted diagnostic tool for predicting recidivism by persons convicted of sex crimes. The tool was developed in Canada and is used throughout North America and around the world. The developers of STATIC-99 conduct ongoing research and evaluation of the instrument. A new version - STATIC-2002 - is being reviewed and refined at this time. The researchers particularly seek to make the instrument both more accurate in predicting risk and easier to apply in the field. It is likely that employment insecurity will be emphasized as a predictor of reoffense and that the factor concerning a lack of close relationships will be made easier to document. This latter change will likely help probation officers and parole agents obtain correct data. (More) SB 1128 (Alquist) PageA Currently in California, STATIC-99 is used by CDCR in determining which high-risk parolees should be monitored with GPS. The STATIC-99 is an important component of the DMH review of persons who face possible commitment as sexually violent predators. (The governing statute requires DMH to employ and update a standardized assessment protocol.) The identified risk factors for recidivism identified in the STATIC-99 are, as follows: Young offender (18-25). Lack of intimate partners (intimate partnerships of 2 years or more lessen recidivism). Non-sexual violence. Prior convictions for non-sexual violence. Prior sex offenses (very important predictor of future criminal behavior). Prior criminal sentencing - 4 or more separate sentencings. Convictions for "non-contact" sex offense (exhibitionism, obscene telephone calls, obscene material). Unrelated victims - perpetrators who were not related to their victims are more likely to re-offend. Stranger victims - perpetrators who preyed on strangers are more likely to reoffend. Male victims - perpetrators who committed crimes against male victims are more likely to reoffend. This bill proposes a comprehensive system for ensuring that risk assessments are conducted for all persons convicted of registerable sex offenses, whether granted probation, in prison, on parole, or in the community after terms of parole or probation have ended. This system also would require that risk assessment levels be posted on Megan's Law to further inform the public as to the particular risk level of individual registrants. 10. Research Concerning Sex Crime Recidivism (More) SB 1128 (Alquist) PageB In February 2004, the Department of Public Safety and Emergency Preparedness of Canada (comparable to U.S. Dept. of Justice and Homeland Security) published an analysis of 95 separate sexual offender recidivism studies "involving more than 31,000 sexual offenders and close to 2000 recidivism predictions." The study concluded: "most sexual offenders are never reconvicted for another sexual offence. [Sic]" The study noted a number of factors strongly associated with recidivism and recommended that resources be applied accordingly. A 2003 study by the U.S. Bureau of Justice Statistics has been widely cited as authority for assertions that sex offenders have shocking rates of recidivism. However, the study does not make such claims. In fact, as measured by the study, sex offenders have lower rates of recidivism than do other offenders. The study did make the finding that (former prison inmate) sex offenders were more likely to commit a future sex crime than were other former inmates, although the non-sex crime inmates were significantly more likely to commit new crimes overall. This is consistent with one of the basic principles underlying the STATIC-99 that past behavior is an important predictor of future behavior. SHOULD CALIFORNIA EMPLOY EVIDENCE-BASED RESEARCH TO FOCUS ITS STRATEGIES FOR CONTAINING SEX OFFENDERS AND PREVENTING FUTURE SEX CRIMES? ARE THERE MORE SOPHISTICATED LAW ENFORCEMENT AND CONTAINMENT TOOLS THAT CALIFORNIA SHOULD BE TAKING ADVANTAGE OF TO FOCUS RESOURCES ON THOSE SEX OFFENDERS MOST LIKELY TO COMMIT SEX CRIMES? R. Karl Hanson, the Canadian government researcher who co-developed the STATIC-99 assessment tool, has recently published a meta-analysis of studies of the recidivism of (More) SB 1128 (Alquist) PageC rapists as compared to child molesters. The study abstract summarized the findings: Study examined the relationship of age to sexual recidivism using data from 10 follow-up studies of adult male sexual offenders (combined sample of 4,673). Rapists were younger than child molesters. Recidivism risk of rapists steadily decreased with age. Extrafamilial child molesters (molesters of non-relatives) showed relatively little reduction in recidivism until after the age of 50. Recidivism rate of intrafamilial child molesters was generally low (less than 10%), except recidivism rate of 18-24 year old intrafamilial offenders was comparable to that of rapists and extrafamilial child molesters. Risk factors for sex offenders updated by Hanson in 2005 are as follows: Deviant Sexual Interest Most sex offenders do not have an enduring preference for illegal sexual activities. Offenders may act on these less-than-preferred sexual objects/activities (response to underage persons, forced sex) for any number of reasons including peer pressure, impulsivity, and opportunity. (Study, p. 12, citation omitted.) Low Self-Control "Low self-control refers to the tendency to respond impulsively to short-term temptation, have little (More) SB 1128 (Alquist) PageD consideration for future consequences, and engage in high-risk behaviours, such as drinking, driving fast, and sexual promiscuity." Some researchers describe low self-control as the critical factor in sexual offending. (Study, p. 13.) Opportunity "Unlike problems with self-control, which should diminish in early adulthood, and deviant sexual drives, which should diminish in early adulthood, and deviant sexual drives, which should diminish in later adulthood, the opportunities for child molesting should decrease in middle adulthood. Most child molesters exploit a relationship of trust with a known or related victim. The opportunities for rape, in contrast, should decrease with age. Most rape victims are young women known to the offender." (Study, p. 14.) Employment Instability Dr. Hanson's most recent research concluded that "employment instability significantly predicted sexual recidivism in the current review ?" Dr. Hanson has recently published an updated meta-analysis of relevant studies. Hanson summarized his findings: The results confirmed that deviant sexual interests and antisocial orientation as important predictors of sexual recidivism. Antisocial orientation (e.g., unstable lifestyle, history of rule violation) was a particularly important predictor of violent non-sexual recidivism and general recidivism. The study also identified a number of new predictor variables, some of which have the potential of being useful targets for intervention (More) SB 1128 (Alquist) PageE (e.g., sexual preoccupations, conflicts in intimate relationships, emotional identification with children, hostility). Actuarial risk instruments were consistently more accurate than unguided clinical opinions in predicting sexual, violent non-sexual and general recidivism. (Hanson and Morton-Bourgon, Predictors of Sexual Recidivism, an Updated Meta-Analysis, 2005.) Summary of Research and Suggestions Many studies have shown that the recidivism rates for sexual offenders is lower than that of other kinds of criminals, even assuming a lower rate of reporting of sex crimes. In this study, Hanson noted that recidivism of sex offenders declined with age, "but the overall effect was not large " Recidivism for rapists declined with age more steeply than with child molesters. Extrafamilial child molesters show little decline in recidivism until after age 50. Hanson noted that the research on the age of onset of offending could be affected by the fact that the reporting of intrafamilial child molesting is often delayed. Hanson concluded: "Much of the age decline in sexual offending could also be attributed to simple learning effect. With experience, man can learn that sex offending is not an effective route to happiness, or more disturbingly, they can learn new and better ways to avoid detection. Disentangling these various explanations requires, of course, further research." SHOULD THE STRATEGIES FOR CONTAINING SEX OFFENDERS BE SHAPED BY EMPIRICAL RESEARCH, INCLUDING CONSIDERATION OF OFFENSE AND REOFFENSE RISKS? SHOULD RESEARCH AND EVALUATION BE CONDUCTED AND ENCOURAGED, AND SHOULD OUR POLICIES BE ADJUSTED IN RESPONSE TO SUCH (More) SB 1128 (Alquist) PageF RESEARCH AND EVALUATION? 11. Child Pornography Statutes: Complications and Confusion California obscenity and child pornography laws are very difficult to read and understand. Various sections include redundant definitions of "matter" that can constitute obscenity or child pornography. Other sections contain redundant descriptions of acts that constitute crimes. Major differences among various crime and penalty provisions depend on the addition or deletion of one word or phrase within multi-subdivision sections and among the various sections. Some penalty provisions are arguably inconsistent. For example, a person convicted of simple possession of child pornography receives the same punishment as a person who distributes or exchanges such material with other adults, although a person who distributes or exchanges material would seem to be the more egregious offender. The punishment for specified forms of commercially motivated forms of distributing child pornography can only be determined by a very confusing application of cross references in Section 311.2 and 311.9. This bill eliminates many of the redundancies in the obscenity and child pornography provisions. Arguably, one who reads the amended provisions will have much less difficulty applying or deciphering the law than doing so as to the current statutes. As described in detail above, this bill also would impose a structure of graduated penalties, with the greatest penalties imposed for possession of explicit sexual conduct depicting minors under the age of 16, as well as for material possessed with the intent to distribute. The following chart depicts some of these new penalties: ----------------------------------------------------------------- | CRIME | CURRENT LAW | THIS BILL | |-----------------------+-------------------+---------------------| (More) SB 1128 (Alquist) PageG |Simple possession of | | Under 16, | |child pornography (PC | Misdemeanor | "explicit" | | 311.11) | | sexual | | | | conduct<10>: | | | | felony (16/2/3) | | | | (new) | | | | 16 or 17, | | | | explicit sexual | | | | conduct: | | | | wobbler (new) | | | | 16 or 17, | | | | sexual conduct, | | | | but not | | | | "explicit" | | | | (311.4(d)): | | | | misdemeanor | | | | (same as | | | | current law) | | | | Under 16: | | | | sexual conduct | | | | but not | | | | "explicit" | | | | (311.4(d)): | | | | wobbler | | | | | |-----------------------+-------------------+---------------------| |Possession with intent | To person |Possession with | --------------------------- <10> For purposes of this section, "explicit sexual conduct" means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation on bare skin, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, graphic and explicit display of the genitals or pubic or rectal area of an overtly sexual character, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. (More) SB 1128 (Alquist) PageH |to distribute or | 18+: |intent to distribute | |exchange (no | misdemeanor |or exchange to a | |commercial purpose | To person |person of any | |required) (PC | under 18: |age:<11> | |311.2(c)) | felony | Under 16: | | | (16/2/3) | "explicit" | | | | sexual conduct: | | | | felony (2/3/4) | | | | (new) | | | | 16 or 17, | | | | "explicit" | | | | sexual conduct: | | | | felony | | | | (16/2/3) (new) | | | | 16 or 17, | | | | sexual conduct | | | | but not | | | | "explicit" | | | | (311.4(d)): | | | | wobbler (new) | | | | Under 16 | | | | sexual conduct | | | | not "explicit" | | | | (311.4(d)): | | | | felony (16/2/3) | | | | 3/6/8 felony | | | | if person is a | | | | registered sex | | | | offender (new) | | | | | |-----------------------+-------------------+---------------------| |Employment or use of |Misdemeanor |Wobbler | |minor for child | | | |pornography - assist | | | |in any act to | | | |distribute or exchange | | | --------------------------- <11> NOTE: Penal Code 311.2 subdivisions (c) and (d) should be repealed, and these provisions added to Penal Code 311.11. (More) SB 1128 (Alquist) PageI |- 1st offense (PC | | | |311.4 (a)) | | | |-----------------------+-------------------+---------------------| |Employment or use of |Felony 16/2/3 |Under 16, explicit | |minor for child | |sexual conduct: | |pornography - posing | |felony (2/3/4)<12> | |or modeling, no | | | |commercial purpose | | | |reqd (PC 311.4(c)) | | | ----------------------------------------------------------------- 12. Contacting Minors with Intent to Commit a Sex Crime - Child Luring; Police Stings Any bill that defines a specific crime for luring of children by adults for purposes of sex should be drafted so as to not interfere with the ability of law enforcement to conduct stings to catch men who seek to have sex with minors. Law enforcement stings - in which law enforcement officers pose as children - are relatively common and have produced many arrests and much publicity. This bill defines a crime under which penalties increase based on the defendant's increasingly dangerous or egregious conduct. This crime uses settled and court-tested language from Penal Code Section 647.6 - annoying or molesting (without physical contact) a child - about persons with an abnormal sexual interest in children. The crime defined is committed where the defendant, with the noted abnormal interest, contacts a child or a person they think is a child with the intent to engage in sexual activity. The penalties in the crime are higher where the defendant actually goes to an arranged meeting. The crime proposed by this bill can be committed where the perpetrator goes to the residence of the victim. As many --------------------------- <12> NOTE: The author may wish to amend Penal Code 311.2 and 311.4 to provide that prosecution under these sections shall not preclude prosecution for human trafficking. (More) SB 1128 (Alquist) PageJ members know, in recent television exposes, the adults who intended to have sexual contact with children came to homes that they - the adults - thought were the residences of the children. The Jessica's Law bills (SB 588 and AB 231) and initiative require as an element that the crime involve an actual child, not a law enforcement officer posing as a child. As such, the new section proposed by these measures could not be used to prosecute those caught in law enforcement stings. (More) Further, defendants arrested in stings might be able to successfully argue that they must be prosecuted under the new luring crime proposed by SB 588/Jessica's Law rather than for attempted lewd conduct. A maxim of criminal law holds that a specific law controls over a more general law covering the same conduct. (1 Witkin & Epstein (3d Ed. 2000) Intro. to Crimes, 59-61.) A defendant who contacted a minor, or who contacted an officer posing as a minor, for purposes of sex, arguably could demand to be prosecuted under the section created by this measure - as they would be much more specific than the general attempt statute. Prosecutors could thereby lose any benefits of existing case law concerning attempts to commit lewd conduct. 13. Sex Crime Sentencing Changes in Jessica's Law Initiative and This Bill (to One Strike, Habitual Sexual Offender, et cetera Laws); Much Ado about Relatively Little - Technical Amendments and Relatively Minor Substantive Changes As recently amended, this bill incorporates a number of the sentencing revisions proposed in SB 588 and the proposed Jessica's Law initiative. While substantive, these sentencing changes nonetheless are largely technical, and include relatively modest expansions of sex crime definitions and sentences. Other changes coordinate provisions within and among sex crime sentencing schemes. An example of a largely technical change is the addition of sex crimes committed by credible threats to retaliate in the future to life-term sentencing schemes. That appears to be a relatively substantial change. However, these sentencing schemes generally now include crimes committed by "duress" or "menace." Because threats to retaliate in the future arguably constitute duress or menace, threats to retaliate are included implicitly in the current sentencing schemes. Still, a direct inclusion of threats to retaliate as an aggravating factor, rather than as an example of duress, may be easier to explain to jurors. That does not mean, however, that the law has been substantially expanded. (More) SB 1128 (Alquist) PageL 14. New Life Term for Particularly Heinous Sexual Contact with a Young Child This bill defines a new crime, with a prison term of 25years to life, for a person who has sexual intercourse or sodomy with a child under the age of 10. Under current law, a life term can be imposed for this conduct. However, a conviction for a crime that would produce such a sentence would require a number of steps. For example, sexual intercourse with a child under 10 could be charged as lewd conduct, a one-strike crime. Sexual intercourse with a child would very likely cause great bodily injury. Great bodily injury is an aggravating factor under the one-strike law. If the jury makes a finding in a one-strike prosecution that the defendant did cause great bodily injury, the defendant would receive a life term. This bill proposes a narrowly drafted crime that would not involve the elements currently required under current law. 15. Megan's Law This bill proposes to require the Department of Justice to renovate the Megan's Law database. Currently, the DOJ database is unable to support additional fields of information. This bill would address this problem, and augment the information contained on Megan's Law to include SVP status and risk assessment information. ***************